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<br /> <br />.' n~~~4Q <br />pages. Th 'tent to which the risk of oversimplificatJ.lrV G 1 " <br />is multiplied in the later two-page memorandum must be <br />evident. (See page 13) <br /> <br />, I wish it to be understood that in preparing both of <br />these memoranda there was no intent on my part to de- <br />part from any essential position heretofore taken before <br />the trial court in these contract validation cases. In the <br />preparation of these memoranda for the information of' <br />the Authority I attempted to summarize the essential po- <br />sition I propose to take. Naturally, these are generaliza- <br />tions only, and what I would actually state in the brief to <br />be filed in the Ivanhoe case would necessarily depend, to <br />a substantial extent, upon what I might have to answer in <br />briefs filed by the appellants. However, I do believe that <br />the Authority, in passing on the important issue now before <br />it, is entitled to a more complete explanation than appears <br />in the two memoranda of the basic considerations why 1 <br />consider the public interest requires a disclosure to the <br />Supreme Court of relevant considerations which might not <br />otherwise be available to the court. I therefore now pro- <br />pose to outline as briefly as practicable those consider- <br />ations. <br /> <br />In the first instance, I wish to emphasize that my concern <br />throughout is, and has been, with the objective to pro- <br />tect and preserve against impairment the integrity <br />of State law relating to the development, control <br />and use of the water resources of the State. I con- <br />sider that the fundamental basis iustlfying that ob- <br />iective is Section J 02 of the Water Code, provid- <br />Ingthat "All water within the State Is the property <br />of ,the people of the State, but the right to the use <br />()f water may be acquired by appropriation In the <br />manner provided by law." I believe that this sec- <br />tion Is to be taken literally and simply means what <br />Its,ays. <br /> <br />" Beginning in approximately 1934, with the prospect of <br />development of the Central Valley Project pursuant to the <br />Federal reclamation laws, I have made a specialty of that <br />body of law. Since imactment of the Reclamation Project <br />Act ,of 1939, I have given detailed attention to interpre- <br />tation of that act which in a number of respects presents <br />problems of difficulty in interpretation. I was particularly <br />a,ppre, hensive, of certain adverse implications in Section <br />9{e) and have given that section close study since that <br />time, and particularly so subsequent to inauguration of the <br />"contract program" of the U. S. Bureau of Reclamation <br />which was first initiated in 1944. Concisely stated that <br />program was to execute water delivery contracts pursuant <br />to Section 9(e) of the Reclamation Project Act of 1939, <br />limited to a 40-year term, without right of renewal, at <br />annua~ rates per acre,_foot,' in substitution for repayment <br /> <br />4( <br /> <br />contracts within the service area of the &al Valley <br />Project. <br /> <br />That study was given impetus by a request of the Water <br />Project Authority that the Division legal staff review the <br />subject of the application of the Federal reclamation laws <br />to the Central Valley Project and recommend such Con. <br />gressionallegislation as might be considered required. The <br />review was made. which culminated in a broad program for <br />revision oftheReclamation Project Act of 1939. This pro- <br />gram was presented to the Authority in the form of a <br />mimeographed pamphlet entitled "Suggested Principles to <br />Govern Amendments to Reclamation Project Act of 1939, <br />and Text of Amendments in Accordance with Such Prin- <br />ciples," and was dated November, 1948. The Authority <br />acted On that program on November 30, 1948, by approv- <br />ing the Explanatory Foreword and the Suggested Principles <br />to Govern the Amendments. Items 4 and 5 of the Explan- <br />atory Foreword read as follows: <br /> <br />, "(4) T" terminate experimental programs of <br />questionable validity and of doubtful expediency. <br />In connection herewith, it is not believed that the <br />Congress ever contemplated the United States em- <br />barking upon a program of delivering water on a <br />utility basis. Another prime objective of the pro- <br />gram is to prevent any further extensions of such <br />experiments. <br /> <br />"(5) To preserve the integrity of the law of waters <br />of the western reclamation states. In the past, a <br />sensitive balance has been more or less precariousfy <br />maintained between state and national policies re- <br />lating to the use, control and distribution of western <br />water resources. Of recent years applications and <br />interpretations of Federal law in this field have <br />tended to upset this balance. A major objective of <br />the program is to restore that balance in particular <br />by requiring return to traditional conceptions of <br />repayment contracts whereby continuing rights to <br />the use of water may be acquired pursuant to State <br />law.1I <br /> <br />Item 4 obviously relates to Section 9(el contracts, and <br />Item 5 is concerned with the adverse implications of such <br />contracts. The hazard to the "sensitive balance" referred <br />to in Item 5 between Federal and State policies relating <br />to the use and control of western water resources is as <br />acute now as it was in 1948. <br /> <br />Various aspects of the Federal reclamation laws have <br />been reviewed by the Supreme Court of the United States. <br /> <br />5 <br />