88 THE RECLAMATION ACT-SEC. 10 429 (Ida. 1910), affirming 172 Fed. 615 (C.C. 1909). See also Magruder v. Belle Fourche Valley Water Users' Assn., 219 Fed. 72, 133 C.C.A. 524 (S.D. 1914). The Reclamation Act is within the power of Congress as to lands within the States as well as Territories, under Constitution, article 4, section 3, giving it power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States", and is not in violation of the Constitution on the ground that it authorizes the expenditure of public money without an appropriation, since it is in itself an appropriation of the proceeds of land sold, nor as delegating legislative authority to the Secretary of the Interior. United States v. Hanson, 167 Fed. 881, 93 C.C.A. 371 (Wash. 1909). 6. Powers of Secretary-Generally Section 10 of the Reclamation Act does not authorize the Secretary to construct extra capacity in a sewerage system beyond the needs for project construction purposes, and make this capacity available to an adjacent town in return for the town's agreement to operate and maintain the system. The proposed use would violate R.S. § 3678, 31 U.S.C. § 28, which limits the use of appropriated funds to the objects for which the appropriation is made, unless otherwise provided by law. 34 Comp. Gen. 599 (1955), in re Glendo, Wyoming. In cases where, because of administrative laxity in enforcing the excess land limitations of reclamation law, or because projects were initiated prior to the enactment of section 46 of the 1926 Act, owners of excess lands have been receiving water therefor without having executed recordable contracts, the Secretary, in the exercise of his authority to perform all acts necessary and proper to carry the reclamation laws into full force and effect (sec. 10 of the Reclamation Act of 1902; sec. 15 of the Reclamation Project Act of 1939), may permit the continued delivery of water to such excess lands on condition that the owner, by the execution of a recordable contract, agrees to dispose of such lands within a reasonable time on reasonable conditions. Associate Solicitor Cohen Opinion, M34999 (October 22, 1947). Secretary of the Interior had power to execute a plan of conservation whereby he stopped winter flow of water through power plant in irrigation district, ceased producing power in nonirrigating season for purpose of conserving such water for irrigating season, contracted with private power company to supply commercial demand in district, and preserved the profitable com mercial power business which would otherwise have been lost through lack of dependable source of power during irrigation season. Burley Irr. Dist. v. Ickes, 116 F. 2d 529, 73 App. D.C. 23 (1940), cert. denied 312 U.S. 687. Neither the Boulder Canyon Project Act nor the Reclamation laws generally authorize the Secretary of the Interior to establish a Federal reservation, in connec tion with the construction of the dam and powerplant, over which the United States would have exclusive jurisdiction pursuant to a Nevada statute generally ceding jurisdiction over lands acquired_by_the United States for public buildings. Six Companies, Inc. v. DeVinney, County Assessor, 2 F. Supp. 693 (D. Nev. 1933). The Secretary of the Interior has no gen. eral supervisory authority under section 441, Revised Statutes, under section 10 of the Act of June 17, 1902, or under section 15 of the Act of August 13, 1914, to suspend public notices issued under the reclamation law. In re Shoshone irrigation project, 50 L.D. 223 (1923). See C.L. 818, May 12, 1919, regarding authority of Secretary of the Interior to provide means for extermination of grasshoppers and other pests. Under the Reclamation Act the Secretary of the Interior has power to contract with an irrigation district to supply, or partially supply, the district with water. Pioneer Irr. Dist. v. Stone, 23 Idaho 344, 130 Pac. 382 (1913); Hillcrest Irr. Dist. v. Brose, 24 Ida. 376, 133 Pac. 663 (1913); Nampa & Meridian Irr. Dist. v. Petrie, 153 Pac. 425 (1915). See also Nampa & Meridian Irr. Dist. v. Petrie, 223 Pac. 531, 37 Ida. 45 (1924). 7. —Leases and permits The Secretary of the Interior may establish rules as to the use of withdrawn lands while not needed for the purpose for which they are reserved, and may lease them for grazing and limit animals to be grazed thereon; the revenue derived going into the reclamation fund. Clyde v. Cummings, 101 Pac. 106, 35 Utah 461 (1909). There is no general statutory authority for leasing Government-owned land, and the Secretary of the Interior may adopt such methods as he deems in the best interest of the United States and the project. In the administration of the Boulder Canyon project area, the Bureau of Reclamation and the National Park Service may grant leases for lands and permits to engage in business activities to private individuals without advertising for proposals or securing competitive bids. Solicitor Margold Opinion, M-28694 (October 13, 1936). THE RECLAMATION ACT-SEC. 10 An easement for the construction and maintenance of an electrical transmission line over lands purchased under the reclamation law could be granted for a maximum period of 50 years on certain conditions administratively imposed. Solicitor's Opinion, M-24897 (December 31, 1928), Newlands project. The Secretary of the Interior has authority to make temporary leases of lands reserved or acquired by purchase for use in connection with an irrigation project contemplated under the provisions of the Reclamation Act where use under the proposed lease will not interfere with the use and control of the lands when needed for the purposes contemplated by the reservation or purchase. Op. Asst. Atty. Gen., 34 L.D. 480 (1906). Temporary leases for grazing and other agricultural purposes may be made of lands acquired through condemnation proceedings for reservoir or canal purposes in reclamation projects during such periods as may elapse between the acquisition of title and the actual use of the same for reservoirs and canals. All such leases should state the purpose for which the lands were acquired and that such purpose will not in any manner be interfered with or delayed by the lease; should specifically provide for the immediate, or speedy, termination the lease in event it is desired to utilize the land or any part thereof for reclamation works, or in event the work of reclamation is found to be hindered or delayed by reason thereof; and should be limited to one year, but may contain provision for renewal for the succeeding year in event the lands should not sooner be needed for reclamation purposes. Instructions, 39 L.D. 525 (1911). of Whenever it is reasonably necessary for the preservation of the buildings, works, and other property, or for the proper protection and efficiency of any reclamation project, or where special conditions make it advisable, first-form withdrawn or purchased lands may be leased to the highest bidder for a term to be decided upon by the Reclamation Service (Bureau of Reclamation) as 89 the conditions may arise. Reclamation decision, March 23, 1917. The Secretary has full authority to purchase lands necessary for reservoir purposes, to arrange the terms of purchases, and to allow the vendor to retain possession after the Government has taken possession until the land may be actually needed where by so doing the purchase may be more advantageously made; but he has no authority under said act to lease such purchased lands after the Government has taken possession thereof. Instructions, 32 L.D. 416 (1904). 8. Overseas projects Section 10 of the Reclamation Act is to be construed as relating only to projects of the United States and does not authorize the Bureau of Reclamation engineers to review designs for two dam projects in Ceylon, and prepare supplemental plans and specifications therefor, with funds to be provided in advance by the Government of Ceylon. Dec. Comp. Gen. B-60382 (October 8, 1946). 16. Rules and regulations-Generally This section gives the Secretary of the Interior no authority or power that he would not have if it were omitted. Op. Atty. Gen., April 27, 1905. Rules and regulations prescribed by the Secretary of the Interior under statutory authority have the effect of statutes and will be judicially noticed by the courts. Alford et al. v. Hesse, 279 Pac. 831 (Calif. 1929). While this section authorizes the Secretary of the Interior to make such regulations as may be necessary and proper to carry this act into full force and effect, he is not authorized to amend, modify, or change statutory provisions fixing rights of a successful contestant, who has secured cancellation of any pre-emption homestead or timber culture entry. Edwards v. Bodkin, 249 Fed. 562, 161 C.C.A. 488 (Cal. 1918). A rule by the Secretary of the Interior, the import of which is to carry into effect the provisions of an act relating to the public lands, is valid, and has the same binding force as the law itself. Clyde v. Cummings, 101 Pac. 106, 35 Utah 461 (1909). 267-067-72-vol. I- -9 90 RECLAMATION OF INDIAN LANDS IN YUMA, COLORADO RIVER, AND PYRAMID LAKE INDIAN RESERVATIONS [Extracts from] An act making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for fiscal year ending June 30, 1905, and for other purposes. (Act of April 21, 1904, ch. 1402, 33 Stat. 189) Sec. 25. [Reclamation and disposal of irrigable lands in Yuma and Colorado River Reservations-Diversion of Colorado River-Allotment-Price per acre-Installment payments-Proceeds.]-In carrying out any irrigation enterprise which may be undertaken under the provisions of the reclamation act of June seventeenth, nineteen hundred and two, and which may make possible and provide for, in connection with the reclamation of other lands, the reclamation of all or any portion of the irrigable lands on the Yuma and Colorado River Indian reservations in California and Arizona, the Secretary of the Interior is hereby authorized to divert the waters of the Colorado River and to reclaim, utilize, and dispose of any lands in said reservations which may be irrigable by such works in like manner as though the same were a part of the public domain: Provided, That there shall be reserved for and allotted to each of the Indians belonging on the said reservations ten acres of the irrigable lands. The remainder of the lands irrigable in said reservations shall be disposed of to settlers under the provisions of the reclamation act: Provided further, That there shall be added to the charges required to be paid under said act by settlers upon the unallotted Indian lands such sum per acre as in the opinion of the Secretary of the Interior shall fairly represent the value of the unallotted lands in said reservations before reclamation; said sum to be paid in annual installments in the same manner as the charges under the reclamation act. Such additional sum per acre, when paid, shall be used to pay into the reclamation fund the charges for the reclamation of the said allotted lands, and the remainder thereof shall be placed to the credit of said Indians and shall be expended from time to time, under the direction of the Secretary of the Interior, for their benefit. (33 Stat. 224; § 3, Act of March 3, 1911, 36 Stat. 1063) EXPLANATORY NOTE 1911 Amendment and Supplementary Provision. The Act of March 3, 1911, 36 Stat. 1063, increased the size of the allotment in the first proviso from five to ten acres and further provided: "That the entire cost of irrigation of the allotted lands shall be reimbursed to the United States from any funds received from the sale of the surplus lands of the reservations or from any other funds that may become available for such purpose: Provided further, That in the event any allottee shall receive a patent in fee to an allotment of land irrigated under this project, before the United States shall have been wholly reimbursed as herein provided, then the proportionate cost of the project to be apportioned equitably by the Secretary of the Interior, shall become a first lien on such allotment, and the fact of such lien shall be recited on the face of each patent in fee issued and the amount of the lien set forth thereon, which said lien, however, shall not be enforced so long as the original allottee, or his heirs, shall actually occupy the allotment as a homestead, and the receipt of the Secretary of the Interior or of the officer, agent, or employee duly authorized by him for that terior to build Parker Dam on the Colorado River. United States v. Arizona, 295 U.S. 174 (1935). Section 25 of the Act of April 21, 1904, does not authorize the Secretary of the InSec. 26. [Reclamation and disposal of irrigable lands in Pyramid Lake Indian Reservation-Allotment-Price per acre-Installment payments-Proceeds.]—In carrying out any irrigation enterprise which may be undertaken under the provisions of the reclamation act of June seventeenth, nineteen hundred and two, and which may make possible and provide for, in connection with the reclamation of other lands, the reclamation of all or any portion of the irrigable lands on the Pyramid Lake, Indian Reservation, Nevada, the Secretary of the Interior is hereby authorized to reclaim, utilize, and dispose of any lands in said reservation which may be irrigable by such works in like manner as though the same were a part of the public domain: Provided, That there shall be reserved for and allotted to each of the Indians belonging on the said reservation five acres of the irrigable lands. The remainder of the lands irrigable in said reservation shall be disposed of to settlers under the provisions of the reclamation act: Provided further, That there shall be added to the charges required to be paid under said act by settlers upon the unallotted Indian lands such sum per acre as in the opinion of the Secretary of the Interior shall fairly represent the value of the unallotted lands in said reservation before reclamation, said sum to be paid in annual installments in the same manner as the charges under the reclamation act. Such additional sum per acre, when paid, shall be used to pay into the reclamation fund the charges for the reclamation of the said allotted lands, and the remainder thereof shall be placed to the credit of said Indians and shall be expended from time to time under the direction of the Secretary of the Interior for their benefit. (33 Stat. 225) EXPLANATORY NOTES Not Codified. Sections 25 and 26 of this Act are not codified in the U.S. Code. Legislative History. H.R. 12684. Public Law 125 in the 58th Congress. H.R. Rept. 92 CROW INDIAN LANDS SUBJECTED TO RECLAMATION LAW [Extracts from] An act to ratify and amend an agreement with the Indians of the Crow Reservation in Montana, and making appropriations to carry the same into effect. (Act of April 27, 1904, ch. 1624, 33 Stat. 352) * Art. II. [Ceded lands to be disposed of under Reclamation Law.]-In consideration of the land ceded, granted, relinquished, and conveyed by article one of this agreement the United States stipulates and agrees to dispose of the same as hereinafter provided under the provisions of the reclamation act approved June seventeenth, nineteen hundred and two, the homestead, town site, and mineral land laws, except sections sixteen and thirty-six, or an equivalent of two sections in each township, at not less than four dollars per acre, subject to the provisions in section five. *** (33 Stat. 356) Sec. 5. [Filing schedule of allotments-Residue to be disposed of under Reclamation Act-Indian employees-Undisposed of lands to be open to settlement-Nonirrigable lands.]-Before any of the lands by this agreement ceded are opened to settlement or entry the Commissioner of Indian Affairs shall cause the allotments to be made and the schedule to be prepared, as provided for in section four of this act, and a duplicate of said schedule shall be filed with the Commissioner of the General Land Office. Upon the completion of such allotments and the filing of such schedule, and after the sale or removal of such improvements, the residue of such ceded lands, except sections sixteen and thirty-six, or lands in lieu thereof, which shall be reserved for common-school purposes and are hereby granted to the State of Montana for such purpose, shall be subject to withdrawal and disposition under the reclamation act of June seventeenth, nineteen hundred and two, so far as feasible irrigation projects may be found therein. The charges provided for by said reclamation act shall be in addition to the charge of four dollars per acre for the land, and shall be paid in annual installments as required under the reclamation act; and the amounts to be paid for the land shall be credited to the funds herein established for the benefit of the Crow Indians. If any lands in sections sixteen and thirty-six are included in an irrigation project under the reclamation act, the State of Montana may select in lieu thereof, as herein provided, other lands not included in any such project, in accordance with the provisions of existing law concerning schoolland selections. In any construction work upon the ceded lands performed directly by the United States under the reclamation act preference shall be given to the employment of Crow Indians, or whites intermarried with them, so far as may be practicable: Provided, however, That if the lands withdrawn under the reclamation act are not disposed of within five years after the passage of this act, then all of said lands so withdrawn shall be disposed of as other lands provided for in this act. That the lands not withdrawn for irrigation under said reclamation act, which lands shall be determined under the direction of the |