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000370 Iimi;":'\osition of the Authority in its re.ol~tion ai.~e expre.. st4tement in the prayer a problem was presented for the attorneys for the State Engineer in formulating "their views" for presentation to the Court on behalf of the Authority. , ' BR~_, SUMMARY OF POSITION PROPOSED '. lBE TAKEN IN PENDING APPEALS IN CONTRACT VALIDATION CASES DECEMBER 29, 19S3 In formulating those views care was exercised to con~ form, so far a. possible, to the resolution and the prayer. It was only to the extent it wa. found not possible to do so have those views not so conformed. We became con- vinced after close study that to an extent water rights were not involved, yet the relationships of the partie. to the contract, to each other and to the State, and the status of each to the other regarding the waters of the State were actually involved. In the event the Principal Attorney, Division of Water Resources, and his staff, are authorixed to appear in the pending appeals in these cases on behalf of the State Engineer and the Water Project Authority, or either of them, it is proposed to adopt the following limited general po.ition. I. That all water within the State is the property of the people of the State but the right to the use thereof may be acquired in the manner prescribed by State law. 2. That the United States in operating the Central Val- ley Project in accordance with the Federal reclamation laws must acquire rights to the use of water for project purposes in accordance with Staie law. 3. That in acquiring such rights the United States i. acting as trustee for the actual irrigation water users who will acquire permanent rights to the use of the water appurtenant to the land irrigated to the extent reasonable beneficial use thereof is made in accordan!=e with permits issued by the State Engineer. 4. That in passing upon the validity of the contract the Court should detennine and declare the rights of the water users and the relationships, rights, powers and duties of the partie. to the contract and the State with respect to one another and to the water which is the subject of the con- tract. 5. That Federal law requires the execution of repayment contracts with water user organizations to assure the return to the Federal treasury of the portion of cost of the Central Valley Proiect allocated to irrigation and assigned for return by the water users. 6. That Section 9(e) of the Reclamation Project Act authorixes water delivery contracts only as a temporary expedient, under circumstances which do not permit exec;u- tion of a repayment contract, to remain in effect until such time as 8 repayment contract can be executed. If the con-. tract were to be construed as such temporary expedient the contract could be validated, otherwise not. 7. The objective of appearance in the Ivanhoe and simi- lar validation cases is to protect and preserve against im.. pairment State law relating to water, its development, control and use in the public interest. Insofar as the judgment declares the foregoing principles it is proposed to support it, limiting our presentation as indicated. It i. not proposed to argue other legal question. that have been raised by other parties to the proceeding. 13 A theory believed to be sound was formulated whereby the adverse implication. of the contract might be avoided and it might be deemed valid under Federal and State law. That theory was conditioned on construction of the con- tract as a tempor.ary expedient to remain in effect until a repayment contract could be negotiated and executed. Inherent in this .theory. of course. was that the condition should be complied with. Also inherent was that if the condition was not fulfilled, the contract would be void. Naturally there was no implication in the theory of an obligation to defend validity of the contract. If the theory had been accepted, that burden would have developed upon those advocating the validity of the contract. I and my staff were not appearing for that purpose but to pro- tect State water law against impairment. Such a limited position was considered automatically to/reclude us from consideration of a number of issues raise in the proceed. ing, such .liS the excess land provisions and others. The court has rendered its decision invalidating the con- tract and entered judgment accordingly. " is my considered opinion thot there is nothing In the decision and iudgment in the Ivanhoe case, properly interpreted. impairing Stote law reloting to the development, control and use of water and the decision and ludgment should therefore be affirmed. This subject is more fully di.cussed in my memorandum of November 27, 1953, which I have referred to herein. We are not concerned with who wins the lawsuit but we are concerned, as I view it, with preservation of the integrity of State law regarding the development, control and use of the State's most valuable resource - its water. To that end it is proposed, in the event I am authorized to par- ticipete in the pending appeal in the Ivanhoe case, and as well in other cases presenting similar issues, to maintain the principle 12