DECISIONS OF THE A-30000 (Supp.) UNITED STATES V. ALBERTA HILL SWALLOW ET AL. Decided January 6, 1967 Desert Land Entry: Cultivation and Reclamation Where in a reasonable farming operation conducted by a farmer owning his own farm, crops would be grown on different areas of the farm in two growing seasons, a desert land entryman may use a two season cropping plan in computing the amount of acreage that can be served by a given amount of water. Desert Land Entry: Cultivation and Reclamation It is questionable whether peak moisture requirements should be disregarded in determining the acreage in an entry that can be irrigated from the source of water available. Desert Land Entry: Cultivation and Reclamation Where an entryman plans a two season cropping operation in which parts of his entry will lie idle part of each year, he is not entitled to an allowance for fallowing in the absence of proof that fallowing is a normal practice for the type of crop plan that he has. Desert Land Entry: Cultivation and Reclamation-Desert Land Entry: Distribution System Final proof must be rejected as to an area of desert land entry which can be irrigated, if at all, only by mobile pumping equipment not on the entry at the expiration of its statutory life. APPEAL FROM HEARING EXAMINER Alberta Hill Swallow, William Woods Porter II, Lillian Lowther Porter, and Albert Ransom Swallow have appealed to the Secretary of the Interior from a decision dated February 25, 1966, of a hearing examiner which held that final proof filed by each on his desert land entry should be accepted in part and rejected in part and the entries canceled as to the parts rejected. The sufficiency of the final proofs had been on appeal before. In a decision dated April 8, 1965, A-30000, the Department considered the appellants' appeal from a decision of the Bureau of Land Manage 74 I.D. No. 1 1 ment rejecting their entries in part and concluded that the evidence presented at a hearing was not sufficient to warrant its resolving the issues presented by the appeal. Accordingly, it set aside the Bureau of Land Management's decision and remanded the case to the Bureau of Land Management for a further hearing. The Bureau of Land Management in turn sent the case to the hearing examiner with instructions that if the parties so stipulated, an appeal from the hearing examiner could be taken directly to the Secretary. The parties consented to this procedure and the appeal is here without having been reviewed by the Director of the Bureau of Land Management. In its first decision the Department stated that the basic issue was whether "the systems actually installed by the entrymen would have provided enough water for all or part of each entry," that is, the entrymen not only had to have developed sufficient water but also had to have provided the physical means to carry it to every legal subdivision. To determine the amount of water needed, the Department added, it would be necessary to ascertain what crops could be grown successfully as a mainstay of the land being irrigated if the entrymen were to offer any crop or crops other than alfalfa as the principal one. In the second decision the hearing examiner found that the pumping plant installed on the Lillian Porter entry serving that entry and two other adjacent entries, referred to as the combined entries,1 is capable of producing 1,600 g.p.m., that while alfalfa had been the main crop in the area in 1957, other field crops have been gradually gaining in production so that alfalfa is losing its role as the principal crop in the area, and that other field crops such as sudan grass, oats, barley, rye, and wheat, have been successfully grown in the area of the claims. He then concluded that as a matter of law an entryman could produce one crop from a part of his entry in the summer growing season and a second crop from another part of his entry in the winter growing season and that climatic conditions in southern California permit the harvesting of two crops per year. He found, however, that the sprinkler lines on the combined entries could irrigate only 200 acres on an 11-day cycle necessary to successfully irrigate the land. Allowing for two crops per year, he found that successful crops could be produced from 400 acres of the combined entries. Accordingly, he rejected the final proof as to 160 acres in each of the three combined entries. Turning to the other entry 2 he found that equipment on the entry 1 The three entries comprise the following: Lillian Lowther Porter, N sec. 2; Albert Ransom Swallow, S1⁄2 sec. 2; William Woods Porter II, E1⁄2 sec. 3; all in T. 11 N., R. 4 W., S.B.M., California. 2 The Alberta Hill Swallow entry covers the S1⁄2 sec. 4, T. 11 N., R. 4 W., S.B.M.. California. January 6, 1967 could successfully reclaim the SE1⁄44 of section 4, and he held the final proof for rejection as to the SW14 sec. 4. The appellants quickly filed a petition asking for reconsideration mainly upon the grounds that it was erroneous to allocate equal amounts of irrigable acreage to the summer and winter growing seasons, and that the same amount of water could be delivered to four times as much land in winter as in summer, so that if 200 acres can be irrigated in summer, 800 can be irrigated in winter. In reply, the contestant argued that even if there are two growing seasons, they overlap to such an extent that water would be required for both crops during a 22-month period, that for a time both crops would require water in the same amount, and that the contestees had not shown that there was water sufficient for both crops during the overlap of growing seasons. The contestees answered that the crucial issue would be whether there was conflict in irrigation seasons rather than growing seasons, that there was none and that there was ample water to irrigate 4 times as much of the entries in winter as in summer. In a supplemental decision dated July 5, 1966, the hearing examiner denied the petition, holding that winter irrigation required an 11-day cycle, that in 11 days 200 acres could be irrigated, that summer irrigation requires a 7-day cycle, so that in summer the water distribution system could irrigate only 125 acres, and that the allowance of 480 acres for the three combined entries was reasonable. He also held that the irrigation equipment on the separate entry (Alberta Swallow) could service only 13 as much as that on the combined entries and that 160 acres was allowed for the planting of two crops per year. The contestees promptly filed a second petition for reconsideration in which they have asserted that the program of applying 5 inches of water every 11 days is a summer peak program and not a winter one, that 200 acres can be irrigated in the summer and 800 in the winter, and that water has been and can be delivered to every 40 acre subdivision of the separate entry On July 20, 1966, the hearing examiner again denied reconsideration, holding in general that all matters raised had been considered previously and in particular that mobile irrigation units not on the Alberta Swallow entry could not be offered as a method for internal distribution of water on that entry. The contestees then filed this appeal to the Secretary. They allege as error the use of a 5 inch-11 day cycle for winter irrigation, the finding that summer irrigation requires a 5 inch 7 day irrigation cycle, and the refusal to find that water has been brought to every 40 acre subdivision of the separate entry. They assert that four times as much land can be irrigated in the winter as in the summer, and that each |