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THE RECLAMATION ACT-SEC. 2

its projected canals. Lewis Wilson, 42 L.D. 8 (1913). See also 48 L.D. 153, amending paragraph 13 of general reclamation circular of May 18, 1916.

When the Secretary of the Interior in the exercise of a reasonable discretion determines as to the validity of title to and as to the value of a right to appropriate water for irrigation purposes to be acquired by him under the provisions of the Act of June 17, 1902, his decision is conclusive upon the accounting officers. 14 Comp. Dec. 724 (1908).

The drilling of wells for the purpose of determining whether underground water exists that may be made available in connection with a project comes within the power conferred by this section "to make examinations and surveys for the development of waters." Op. Asst. Atty. Gen., 34 L.D. 533 (1906).

2. Research

The Bureau of Reclamation is authorized under reclamation law to expend appropriations made from the general funds of the Treasury under the heading "General Investigations-general engineering and research" for atmospheric water resources research that is of primary benefit to States other than the 17 Western States. Although expenditures from the Reclamation Fund may be made only for the benefit of the 17 Western States, expenditures from general fund appropriations are not so limited because section 2 of the Reclamation Act and section 8 of the Flood Control Act of 1944 evidence a Congressional intent to make the benefits of reclamation law available to all parts of the Nation notwithstanding the limitations on the use of the Reclamation Fund. Memorandum of Associate Solicitor Hogan, July 13, 1966.

3. Contributed funds

For some years prior to 1922 the Reclamation Service had been carrying on investigations on the Colorado River in the vicinity of Black and Boulder Canyons. Funds appropriated for fiscal year 1922 not being sufficient to continue these investigations, an arrangement was worked out whereby the City of Los Angeles and three other public bodies in Southern California interested in the proposed development on the Colorado River advanced the funds necessary to permit the investigation to continue.

The City of Los Angeles sued the United States to recover the sum of $55,000, contributed by it for that purpose under a contract dated February 16, 1922. Article 18 of the contract provided that, if the Congress, within two years of the date of the

contract, authorized similar investigations by and on behalf of the United States and should make sufficient appropriations therefor and for reimbursement of funds advanced, then the Bureau would refund to the city such advanced funds or the appropriate share thereof. The sum of $50,283.35, from appropriations by Congress for the fiscal years 1923 and 1924, for continued investigations on the Colorado River, was not spent and reverted to the Reclamation Fund. The city petitioned the Court of Claims for reimbursement of its proportionate share of this money. The court held that the agreement was illegal and unenforceable since it violated Sections 3679 and 3732 of the Revised Statutes (31 U.S.C. 665, 41 U.S.C. 11). City of Los Angeles v. United States. 107 Ct. Cl. 315, 68 F. Supp. 974 (1946).

6. Works authorized-Generally

The general statutory authority of the Secretary for construction of irrigation works is sufficiently broad to authorize preparatory work, such as land leveling, roughing in of farm distribution systems, and the planting of cover crops on public lands within an irrigation project. Solicitor White Opinion, 59 I.D. 299 (1946).

7. -Drainage works

It is well settled that the United States may construct drainage works as a part of its irrigation system; the necessity for drainage and the methods of conducting the work are in the sound discretion of the Secretary of the Interior, and such discretion cannot be reviewed by the courts. United States v. Ide, 277 Fed. 373 (8th Cir. 1921), affirmed 263 U.S. 497 (1924). See also Weymouth v. Lincoln Land Co., 277 Fed. 384 (8th Cir. 1921).

The Secretary of the Interior has authority to provide for drainage as part of an irrigation project in order to prevent damage to property from the operation of the irrigation system. Nampa & Meridian Irr. Dist. v. Bond, 283 Fed. 569 (D. Idaho 1922), 288 Fed. 541 (9th Cir. 1923), 268 U.S. 50 (1925).

The drainage system authorized by reclamation law is that which will provide drainage necessary to the successful operation of the complete project, and as a general matter the acreage limitations of the law do not apply to it. Memorandum of Chief Counsel Fix to Commissioner, May 12, 1948.

8. Artesian wells

The phrase "including artesian wells" is used to describe one class of irrigation works to be constructed in carrying out the scheme for reclaiming arid lands provided for in

THE RECLAMATION ACT-SEC. 3

the act, and it is not contemplated by this section that such wells may be sunk as a part of the preliminary examinations authorized therein, nor is it permissible to sink an arte

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sian well where it is believed that if water is found it will not be suitable or needed or used for irrigation purposes. Instructions, 32 L.D. 278 (1903).

Sec. 3. [Withdrawal of lands for irrigation works-Withdrawal of lands susceptible of irrigation Homestead entries-Determination whether project is practicable-Restoration and entry-Commutation.]-The Secretary of the Interior shall, before giving the public notice provided for in section 4 of this act, withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act, and 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; and the Secretary of the Interior is hereby authorized, at or immediately prior to the time of beginning the surveys for any contemplated irrigation works, to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from said works: Provided, That all lands entered and entries made under the homestead laws within areas so withdrawn during such withdrawal shall be subject to all the provisions, limitations, charges, terms, and conditions of this act; that said surveys shall be prosecuted diligently to completion, and upon the completion thereof, and of the necessary maps, plans, and estimates of cost, the Secretary of the Interior shall determine whether or not said project is practicable and advisable, and if determined to be impracticable or unadvisable he shall thereupon restore said lands to entry; that public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws in tracts of not less than forty nor more than one hundred and sixty acres, and shall be subject to the limitations, charges, terms, and conditions herein provided: Provided, That the commutation provisions of the homestead laws shall not apply to entries made under this act. (32 Stat. 388; 43 U.S.C. §§ 416, 432, 434)

EXPLANATORY NOTES

Codification. The first part of this section through the first proviso and ending with the words "and if determined to be impracticable or unadvisable he shall thereupon restore said lands to entry" is codified as section 416, title 43, U.S. Code. The balance of the section, except for the words "in tracts of not less than forty nor more than one hundred and sixty," is codified as section 432. The reference to the size of the tracts is incorporated in section 434.

Supplementary Provision: Entries of Units Less than Forty Acres; Additional Entries, Desert Land Entries. Section 1 of the Act of June 27, 1906, authorizes the Secretary of the Interior, under certain conditions, to establish a unit of less than forty acres as the minimum entry. Section 2 authorizes one who has relinquished lands covered by a bona fide unperfected entry to make an additional entry. Section 5 deals with the case of a desert land entry on lands

subsequently withdrawn under the Reclamation Act. The Act appears herein in chronological order.

Supplementary Provision: Entries of Irrigable Lands Prohibited Until Certain Actions Taken. Section 5 of the Act of June 25, 1910, 36 Stat. 836, provides that no entry shall thereafter be permitted on lands withdrawn for irrigation purposes until the Secretary has established the unit of acreage, fixed the water charges and the date when the water can be applied, and made public announcement of the same. The Act appears herein in chronological order.

Additional Supplementary Provisions. Additional supplementary provisions relating to the subjects of withdrawals, entries and farm units are referenced in the index.

Cross Reference, Homestead Laws. Relevant extracts from the homestead laws are included in the appendix.

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1. Withdrawals, generally-Purpose of

The authority to withdraw lands for irrigation purposes conferred upon the Secretary of the Interior is a special authority to make withdrawals for a particular purpose and is limited to the specific uses provided for in the Act, or to uses incident to and in the furtherance thereof. Op. Asst. Atty. Gen., 33 L.D. 415 (1905).

The Secretary of the Interior has no authority under this Act to withdraw lands for reservoir sites with a view to the use of the waters impounded therein for domestic purposes. Op. Asst. Atty. Gen., 33 L.D. 415 (1905).

Public lands adjacent to reclamation withdrawn lands bordering Lake Havasu may be withdrawn pursuant to the Reclamation Act and leased to the State of Arizona where the withdrawal will implement in part the Lower Colorado Land Use Plan with its concomitant reclamation benefits such as facilitating the Bureau's control over the use of the lake waters and shores. Memorandum of Associate Solicitor Hogan, October 9, 1964.

The Reclamation Act authorizes the withdrawal of public lands from entry to provide pasture for Government animals used in

carrying on operations under the act. Departmental decision, March 21, 1910, Lower Yellowstone.

2. -Discretion of Secretary

The discretion of the Secretary of the Interior in making first-form withdrawals of lands cannot be questioned, and no application to enter can be allowed on the ground that the land is not needed. Ernest Woodcock, 38 L.D. 349 (1909).

The withdrawal of land for irrigation purposes under this section is a matter that was committed to the Land Department exclusively, and, in the absence of fraud on the part of the officials of that Department, could not be reviewed by the courts. Don. ley v. West, 189 Pac. 1052 (Cal. App. 1920), reversed on rehearing on other grounds, 193 Pac. 519 (Cal. App. 1920), error dismissed, 260 U.S. 697 (1922). 3. First and second form withdrawals

There are two classes of withdrawals authorized by the Act, one commonly known as "withdrawals under the first form," which embraces lands that may possibly be needed in the construction and maintenance of irrigation works, and the other, commonly

THE RECLAMATION ACT-SEC. 3

known as "withdrawals under the second form," which embraces lands not supposed to be needed in the actual construction and maintenance of irrigation works but which may possibly be irrigated from such works. General Land Office Circular, June 6, 1905, 33 L.D. 607.

Two classes of withdrawals are provided for by this section, and the exception of homestead entry from the second does not apply to the first; withdrawals and reservations thereunder being necessarily absolute. United States v. Hanson, 167 Fed. 881, 93 C.C.A. 371 (Wash. 1909).

The proviso of section 5 of the Act of June 25, 1910, as amended, making lands reserved for irrigation purposes and relinquished from prior entries subject to entry under this section, applies only to lands withdrawn under this section as susceptible of irrigation under a proposed project, and not to lands withdrawn as required for the construction of irrigation works. United States v. Fall, 276 Fed. 622, 57 App. D.C. 100 (1921).

Where the Secretary of the Interior by approval of farm unit plats under the provisions of the Act of June 17, 1902, heretofore or hereafter given, has determined, or may determine, that the lands designated thereon are irrigable, the filing of such plats in the office of the Commissioner of the General Land Office and in the local land offices shall be regarded as equivalent to an order withdrawing such lands under the second form under said Act, and as an order changing to the second form any withdrawal of the first form then effective as to any such tracts. Department decision, 37 L.D. 27 (1908).

The distinction between "forms of withdrawals," that is, between "first form withdrawals" (for irrigation works) and "second form withdrawals" (for irrigable land), was made administratively to recognize the distinction that in the latter case, irrigable lands so withdrawn under section 3 of the Reclamation Act could be entered under the homestead laws in advance of the availability of water from the project. This distinction was no longer pertinent after the enactment of section 5 of the Act of June 25, 1910, 36 Stat. 835, which precluded entry until after the Secretary had established the unit of acreage, fixed the water charges and the date of water availability, and made public announcement of the same. For this reason, the Bureau of Reclamation has abandoned the use of second form withdrawals. Associate Solicitor Fisher Opinion, M-36433 (April 12, 1957), in re disposal of lands, Guernsey Reservoir, North Platte Project.

4. Procedures

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Any withdrawal otherwise valid shall not be affected by failure to note same on tract book or otherwise follow the usual procedure. Instructions, 42 L.D. 318 (1913). See 48 L.D. 153, amending paragraphs 13, 14, and 16, and revoking paragraph 15 of general reclamation circular of May 18, 1916.

Under existing departmental procedures and regulations approved by the President, orders withdrawing public lands for reclamation purposes are effective when approved by the Commissioner of Reclamation and concurred in by the Bureau of Land Management, and are effective to constitute valid notice as to persons not having actual knowledge thereof when filed with the Division of the Federal Register, National Archives. Associate Solicitor Soller Opinion, M-36382 (October 24, 1956).

6. Lands and interests affected by withdrawal-Generally

Under this section, the Secretary of the Interior had authority to withdraw from public entry lands constituting a reservoir site sought to be appropriated by a water and power company, and the laws of the United States in reference to the disposition of public lands of the United States being paramount and exclusive, a water and power company could not acquire an easement on lands of a reservoir site, withdrawn from entry by the Secretary of the Interior, by virtue of any compliance with Civ. Code 1913, para. 5337, 5338. Verde Water & Power Co. v. Salt River Valley Water Users' Assn., 197 Pac. 227, 22 Ariz. 305, cert. denied, 257 U.S. 643.

The withdrawal authority of section 3 of the Reclamation Act must be construed broadly. Accordingly, withdrawal orders are effective as to public lands which were not technically open to "public entry" at the time of the order, such as forest reserves and school lands reserved for the benefit of a Territory but not granted to it. Assistant Secretary Davidson Opinion, 59 I.D. 280 (1946).

7. -National parks

The Secretary of the Interior has the same right to withdraw lands within the Yosemite National Park, created by the Act of October 1, 1890, 26 Stat. 650, for the uses and purposes contemplated by the Act of June 17, 1902, that he has to withdraw lands for such purposes within forest reservation created under authority of the Act of March 3, 1891, 26 Stat. 1095. Op. Asst. Atty. Gen., 33 L.D. 389 (1904). 8.-Forest reserves

Under the Act of February 15, 1901, 31 Stat. 790, lands in forest reserves created

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THE RECLAMATION ACT-SEC. 3

under authority of the Act of March 3, 1891, 26 Stat. 1095, may be appropriated and used for irrigation works constructed under authority of the Act of June 17, 1902, as well as for works constructed by individuals. Op. Asst. Atty. Gen., 33 L.D. 389 (1904).

9. Military reservations

Congress having by the Act of July 5, 1884, 33 Stat. 103, provided for the disposal of lands in abandoned military reservations, the Secretary of the Interior is without authority to dispose of such lands in any other manner or to segregate them for use in connection with an irrigation project. Instructions, 33 L.D. 130 (1904).

Lands formerly within the Fort Buford Military Reservation were by the Act of May 19, 1900, 31 Stat. 180, restored to the public domain and made subject to existing laws relating to disposal of the public lands, except such laws as are not specifically named therein, and are subject to withdrawal under the Reclamation Act as other portions of the public domain subject to entry under the general land laws; and a withdrawal of such lands for reclamation purposes is effective as to all of the lands for which entry was not made within three months from the filing of the township plat and prior to the withdrawal. Op. Asst. Atty. Gen., 34 L.D. 347 (1905).

The fact that the Act of April 18, 1896, 29 Stat. 95, provides that the lands in the abandoned portion of the Fort Assiniboine Military Reservation, thereby opened to entry, shall be disposed of only under the laws therein specifically named, does not prevent a withdrawal under the Act of June 17, 1902, of any of said lands as to which no vested right has attached. Mary C. Sands, 34 L.D. 653 (1906).

10. -Indian lands

Where under the Act of March 3, 1905, 33 Stat. 1069, lands of the Uintah Indian Reservation have been set apart and reserved as a reservoir site for general agricultural development and subsequently have been withdrawn, under section 3 of the Reclamation Act, from all forms of sale and entry, the United States is liable upon an implied contract to the Indians of said reservation for the occupancy and use of said lands to the extent that the use made of them is inconsistent with the rights of the Indians to use and occupy them or leave them open to sale and entry for their benefit, and the reclamation fund is applicable to the payment thereof. 14 Comp. Dec. 49 (1907).

The Secretary of the Interior, by departmental orders of January 31 and Septem

ber 8, 1903, withdrew for flowage purposes under the Reclamation Act of June 17, 1902, land in sections 4, 6, 8, 16, 20, 22, 28 and 34, T. 16 N., R. 21 W., and in section 12, T. 16 N., R. 22 W., G. & S. R. M. Executive Order of February 2, 1911, subsequently withdrew these lands as an addition to the Fort Mohave Indian Reservation. Congress by Act of May 23, 1934, 48 Stat. 795, recognized Indian ownership of the lands and confirmed the Executive Order of February 2, 1911. The Department held that the reclamation withdrawals of January 31 and September 8, 1903, were ineffective and that title to said lands being in the Fort Mohave Indian Reservation, the Indians are entitled to compensation for land required by the Bureau of Reclamation for flowage purposes on account of the construction of Parker Dam, Arizona. Solicitor Margold Opinion, M-28589

(August 24, 1936).

The Chemehuevi Indians claimed compensation for lands to be flooded by the Parker Reservoir, Parker Dam project, but the Metropolitan Water District, which was acquiring the right of way for the reservoir under contract with the United States, contended that it was not necessary to purchase the lands since they had been withdrawn for reclamation purposes by departmental orders of July 2, August 26 and September 15, 1902, and February 5 and September 8, 1903. On February 2, 1907, the lands were withdrawn from settlement and entry pending action by Congress authorizing the addition of the lands to various mission Indian reservations. The Department held that at most the reclamation withdrawals established the right of the Bureau of Reclamation to utilize the land for reclamation purposes as and when the need arose, but that the Indians must be paid for the land, their occupation of which long antedated the reclamation withdrawals, and was subsequently recognized by the order of February 2, 1907. Solicitor Margold Opinion, M-30318 (December 15, 1939). 11. Minerals and mineral lands

The right of the Government to appropriate public land for use in the construction and operation of irrigation works under the Act of June 17, 1902, is not affected by the fact that the land is mineral in character. Instructions, 35 L.D. 216 (1906). Loney v. Scott, 57 Or. 378, 112 Pac. 172 (1910).

The authority of the Secretary of the Interior to withdraw "lands" for reclamation purposes includes within its scope the authority to withdraw the minerals in lands where the surface has been patented by the Government but the title to the min

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