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RECLAMATION PROJECT ACT OF 1939-SEC. 10

allocated to irrigation; and shall require payment of said rates each year in advance of delivery of water for said year. In the event such contracts are made for furnishing water for irrigation purposes, the costs of any irrigation water distribution works constructed by the United States in connection with the new project, new division of a project, or supplemental works on a project, shall be covered by a repayment contract entered into pursuant to said subsection (d). (53 Stat. 1196; 43 U.S.C. § 485h (e))

EXPLANATORY NOTE

Supplementary Provisions: Administration of Contracts. The Act of July 2, 1956, 70 Stat. 483, is an act relating to the ad

Contracts 1
Repayment 2
Water rights 3
1. Contracts

ministration of contracts under this subsection and subsection (d). The 1956 Act appears herein in chronogical order.

NOTES OF OPINIONS

Contracts executed under section 9(e) of the Reclamation Project Act of 1939 are not invalid because of failure to recite a definite sum as being the total amount due for water supply facilities. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 298 (1958).

Objections of appellees that contracts executed under section 9(e) of the Reclamation Project Act of 1939 are invalid because they imply that water users are not entitled to water rights beyond the 40-year terms of the contracts and because they do not make clear that the districts and landowners become free of indebtedness upon repayment, are answered by the Act of July 2, 1956, 70 Stat. 483. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 297-8 (1958). 2. Repayment

There is no legal requirement that contracts entered into under subsection 9(e) must provide for recovery within 40 years of the construction costs connected with water supply and allocated to irrigation.

Solicitor White Opinion, 60 I.D. 180 (1948).

Subsections (c), (d), and (e) require repayment or return of all actual costs, not estimated costs, allocated to irrigation. The requirement for full return of such costs can be met by assigning for return from power revenues, where such revenues are available, all increased costs properly allocable to irrigation but which are beyond the water users' ability to pay. Memorandum of Chief Counsel Fix to Commissioner, April 20. 1948, at 26, in re questions of law raised by House Appropriations Subcommitte; reprinted in Hearings on Interior Department Appropriation Bill for 1949 Before a House Appropriations Subcommittee, 80th Cong., 2d Sess., pt. 3 at 885 (1948).

3. Water rights

While water users under section 9 contracts acquire a water right, they acquire no equity in the physical assets of the project which would be required to be reflected as such in the balance sheets of the Bureau of Reclamation. No legal objection is perceived, therefore, to considering receipts from both section 9(d) and section 9(e) contracts as income. Dec. Comp. Gen. B91527-O.M. (January 18, 1950).

Sec. 10. [Removal of sand, gravel, and other minerals from withdrawn lands without competitive bidding-Authority to grant leases, licenses, easements, and rights-of-way.]—The Secretary, in his discretion, may (a) permit the removal, from lands or interest in lands withdrawn or acquired and being administered under the Federal reclamation laws in connection with the construction or operation and maintenance of any project, of sand, gravel, and other minerals and building materials with or without competitive bidding: Provided, That removals may be permitted without charge if for use by a public agency in the construction of public roads or streets within any project or in its immediate vicinity; and (b) grant leases and licenses for periods not to exceed fifty

RECLAMATION PROJECT ACT OF 1939-SEC. 10 657 years, and easements or rights-of-way with or without limitation as to period of time affecting lands or interest in lands withdrawn or acquired and being administered under the Federal reclamation laws in connection with the construction or operation and maintenance of any project: Provided, That, if a water users' organization is under contract obligation for repayment on account of the project or division involved, easements or rights-of-way for periods in excess of twenty-five years shall be granted only upon prior written approval of the governing board of such organization. Such permits or grants shall be made only when, in the judgment of the Secretary, their exercise will not be incompatible with the purposes for which the lands or interests in lands are being administered, and shall be on such terms and conditions as in his judgment will adequately protect the interests of the United States and the project for which said lands or interests in lands are being administered. (53 Stat. 1196; Act of August 18, 1950, 64 Stat. 463; 43 U.S.C. § 387)

EXPLANATORY NOTES

1950 Amendment. The Act of August 18, 1950, 64 Stat. 463, amended clause (b) by removing the 50-year limitation on easements and rights-of-way and adding the proviso requiring consent of the water users' organization for easements or rights-of-way for periods in excess of 25 years. As originally enacted in 1939, clause (b) of section 10 read as follows:

"(b) grant leases, licenses, easements, or rights-of-way, for periods not to exceed fifty years, affecting lands or interests in lands withdrawn or acquired and being administered under the Federal reclamation laws in connection with the construction or operation and maintenance of any project."

Codification. The second sentence of the original section was omitted from the section as codified at 43 U.S.C. § 387. This omission is believed to be erroneous, however, particularly in view of the statement in the letters of the Secretary of the Interior transmitting to the House and Senate the draft of bill which became the basis for the 1950 amendment, that the legislation "will in no way affect" the second sentence. H.R. Rept. No. 450 (1949). S. Rept. No. 1942 (1950), 81st Congress. The sentence has been reinstated in the supplement to the 1964 edition of the U.S. Code.

Prior Act: Sale of Railroad. The Act of August 11, 1916, 39 Stat. 506, authorized the Secretary of the Interior to appraise and sell the Boise and Arrowrock Railroad. which was constructed by the Reclamation Service in connection with the construction of the Arrowrock Dam, Boise project, and was no longer needed for that purpose. The railroad was 17 miles in length and connected the Oregon Short Line Railway and the site of the Arrowrock Dam. After an attempt to lease the railway failed, the Department requested legislative authority to sell it.

Prior Acts: Sale of Lands to Railroad Companies. The Act of February 26, 1917, 39 Stat. 940, authorized the sale and conveyance of certain lands of the Milk River project, Montana, to the Great Northern Railway Company for division terminal yards and other railway purposes. The Act of December 17, 1919, 41 Stat. 1453, authorized the sale and conveyance of certain lands of the Minidoka project, Idaho, to the Oregon Short Line Railroad Company for railroad purposes "at a price to be fixed by the Secretary of the Interior in order to return the expenditure heretofore made or proposed for the irrigation of the lands at not less than $50 per acre . . .”.

NOTES OF OPINIONS

Under the Act of February 8, 1905, and the Act of March 3, 1891, as amended, the Bureau may issue a permit to an irrigation district to remove clay without charge from

public lands to be used in connection with the operation and maintenance of drainage facilities of a federal reclamation project. This authority is not repealed by section 10(a) of the Reclamation Project Act of 1939. Memorandum of Acting Associate Solicitor Coulter, August 11, 1966, in re request of Yuma Mesa Irrigation and Drainage District.

RECLAMATION PROJECT ACT OF 1939-SEC. 11

Sec. 11. [Sale of property, appraised not to exceed $300, under Acts of February 2, 1911, and May 20, 1920.]-The Secretary in his discretion, in any instances where property to be sold under the Act of February 2, 1911 (36 Stat. 895), or the Act of May 20, 1920 (41 Stat. 605), is appraised at not to exceed $300, may sell said property at public or private sale without complying with the provisions of said Acts as to notice, publication, and mode of sale. (53 Stat. 1197; 43 U.S.C. § 375a)

EXPLANATORY NOTE

RECLAMATION PROJECT ACT OF 1939-SEC. 13

the text, authorizes the sale of withdrawn lands, not otherwise reserved, that have been improved at the expense of the reclamation fund, but are no longer needed for

659

the purpose for which they were withdrawn. Both acts appear herein in chronological order.

Sec. 12. [Liability of United States on contracts for services, supplies, etc., contingent upon appropriations.]—When appropriations have been made for the commencement or continuation of construction or operation and maintenance of any project, the Secretary may, in connection with such construction or operation and maintenance, enter into contracts for miscellaneous services, for materials and supplies, as well as for construction, which may cover such periods of time as the Secretary may consider necessary but in which the liability of the United States shall be contingent upon appropriations being made therefor. (53 Stat. 1197; 43 U.S.C. § 388)

EXPLANATORY NOTES

Cross Reference, Loans for Local Distribution Systems. Provisos in each annual Public Works Appropriation Act beginning with the Act of September 10, 1959, 73 Stat. 495, provide that loans beyond the current fiscal year for the construction of local distribution systems under the Act of July 4, 1955, 69 Stat. 244, are subject to the same conditions as stated in section 12 of the Reclamation Project Act of 1939, that is that they shall be contingent upon appro

priations being made therefor. The 1955 Act and the relevant extract from the 1959 Act appear herein in chronological order.

Cross Reference, Prior Law. Section 16 of the Reclamation Extension Act of August 13, 1914, which appears herein in chronological order, was interpreted generally as limiting the contracting authority of the Bureau of Reclamation to an annual basis and within current annual appropriations.

NOTES OF OPINIONS

or

The definition of the term "project" in section 2 of the Reclamation Project Act of 1939 includes projects not under the reclamation laws that are constructed operated and maintained by the Secretary of the Interior through the Bureau of Reclamation for other agencies, such as the Lower Two Medicine Dam on the Blackfeet Indian Irrigation project. Consequently, the provisions of section 12 of the Act authorize the inclusion of the usual contingency-upon-appropriations clause in the construction contract. Memorandum of Associate Solicitor Hogan, October 6, 1966.

2. Construction with other laws

Provisions in the Interior Department Appropriation Act, 1949, authorizing the Commissioner of Reclamation to enter into contracts with respect to construction of the Cachuma Unit, Santa Barbara project, and the Palisades project, up to certain amounts over and above the amount of the appropriations for the projects, fully obligate the United States to pay the contractors up to the stated amounts and are additional to the authority in section 12 of the Reclamation Project Act of 1939 to this extent. Dec. Comp. Gen., B-79145 (September 10, 1948).

be pro

Sec. 13. [Supplies, equipment, services, not in excess of $300, may cured in open market.]—The purchase of supplies and equipment or the procurement of services for the Bureau of Reclamation at the seat of government and elsewhere may be made in the open market without compliance with section 3709 or section 3744 of the Revised Statutes of the United States, in the manner common among businessmen, when the aggregate payment for the purchase or the services does not exceed $300 in any instance. (53 Stat. 1197; 41 U.S.C. § 16d note)

660

RECLAMATION PROJECT ACT OF 1939-SEC. 14

EXPLANATORY NOTE

References in the Text. Section 3709 of the Revised Statutes (41 U.S.C. §5), referred to in the text, deals with competitive bidding. The section is found herein in the Appendix. Section 3744 of the Revised Statutes required that contracts made by

the Secretaries of War, Navy and Interior be in writing, and that copies of these contracts be filed in the returns office of the Department of the Interior. Section 3744 of the Revised Statutes was repealed by the Act of October 21, 1941, 55 Stat. 743.

Sec. 14. [Authority to purchase or condemn lands for relocating highways, roadways, railroads, telegraph, telephone, and electric transmission linesExchange Government properties-Grant perpetual easements-Exchange or replacement of water, water rights, or electric energy.]-The Secretary is hereby authorized, in connection with the construction or operation and maintenance of any project, (a) to purchase or condemn suitable lands or interests in lands for relocation of highways, roadways, railroads, telegraph, telephone, or electric transmission lines, or any other properties whatsoever, the relocation of which in the judgment of the Secretary is necessitated by said construction or operation and maintenance, and to perform any or all work involved in said relocations on said lands or interests in lands, other lands or interests in lands owned and held by the United States in connection with the construction or operation and maintenance of said project, or properties not owned by the United States; (b) to enter into contracts with the owners of said properties whereby they undertake to acquire any or all property needed for said relocation, or to perform any or all work involved in said relocations; and (c) for the purpose of effecting completely said relocations, to convey or exchange Government properties acquired or improved under (a) above, with or without improvements, or other properties owned and held by the United States in connection with the construction or operation and maintenance of said project, or to grant perpetual easements therein or thereover. Grants or conveyances hereunder shall be by instruments executed by the Secretary without regard to provisions of law governing the patenting of public lands.

The Secretary is further authorized, for the purpose of orderly and economical construction or operation and maintenance of any project, to enter into such contracts for exchange or replacement of water, water rights, or electric energy, or for the adjustment of water rights, as in his judgment are necessary and in the interests of the United States and the project. (53 Stat. 1197; 43 U.S.C. § 389)