WSP01690 - Laserfiche WebLink

Home Browse Search

~ ooL.\ <jL .- rep~ymen rac~ var~ing from ~he !erms of Section 9~b 0 2 ~ 51>rojects, to follow State law in that regarJ!llll'nd elso eX- ~ut In genera keeping with the ob,ectlves of the Act, su - 1 pressly provides that all water rights acquired under such ,ect to approval by the Congress. projects shall be appurtenant to the land irrigated. It is not belie~ed possible to properly construe Section 9(e) without reference to Section 7. This is believed subject to ready demonstration, inasmuch as Section 7(bJ contains a power which is absolutely essential in order that there may be an allocation of costs among the various project objectives. This is the sole provision of the Act which could possibly supply that power. Section 7lbl in terms applies to a project in the status of the Central Valley Project. This subsection no less than five times contains express refer- ence to It a repayment- contract," and authorizes allocation of costs respecting existing or future projects concerning which "a repayment contractU has not been executed, and continues !land a repayment contract may be negotiated, in the discretion of the Secretary (') pursuant to the au- thority of subsection la) of this section, or (2) in accord- ance, as near as may (,e. with the provisions in subsection 9(d) or 9(e) of this Act," It appears too clear for argument that here are pre- sented two alternatives and two only. A repayment con- tract may be executed either in accordance with Section 7(a) or in. accordance "as near as may bell with the pro- visions ,of Sections 9(d) or 9(e). It appears reasonable to , construe this language as authorizing resort to a water delivery contract under Section 9(e) only in the event it is impracticable for. sound reasons to execute ill repayment contract, such 9(e) contract to remain in effect until such time as it may be possible to execute a repayment contract as required by Federal law. The language "as near as may be" imports a degree of flexibility in the following refer- ence to "Section 9(dJ or 9(e) of this Act." This construction wou'd permit execution of a contract' under Section 9(e) providing for water delivery os a temporary expedient until a repay- ment 'contract cou'd be executed either under Sec- tion 7(a) or 9(d). In either event the resulting con- tract would consist 'n a repayment' contract os requ'red by federa' 'aw. Under this construction there wou'd be no necessary conl/lct with State 'aw. Under the decisions of the Supreme Court of the United States construing repayment contracts in accordance with the traditional concept thereof, and as now embodied in Section 9(dl of the Reclamation Project Act, there is ample scope for (ree application of State law as s"eciflcally re- quired in regard to irrigation by Section 8 of the original Reclamation Act of June 17, 1902, which section requires the Secretary of the Interior, in developing reclamation 10 Current State and Federal law, as applied to the present situation, requires that rights to the use of water for the project shall be acquired pursuant to State law, and further requires that the users of the water shall acquire the beneficia' title to the use of the water, and the United States Itself acquires no title thereto, but ho'ds any rights It may acquire for such purposes In trust for the water users, who as beneficiaries of the trust when water Is applied to beneRcla' use, acquire full title thereto with priority relating back to the dates of the oppllcatlons made therefor, which rights are appurtenant to the land Irrigated. If and when permits are Issued pursuant to applications he'd by the United States for purposes of the prolect, such permits should contain condi- tions requiring the United States to conform to the foregoing prlnclp'es and assuring the pral_ ben.... I/clarles of the advantages thereof. If the present contract were unconditionally held to be valid it is believed there would result a conflict of Federal and State authority which would be adverse to the public interest. It would seem to follow that theW ater Project Authority in acting on the resolution of March 27, 1951, authorizing the Attorney General to represent it in the Ivanhoe case, in "agreeing" that the attorneys of the staff of the State Engineer should express to the court "their views" on be- half oUhe Authority anticipated that those views might differ from the views of the Attorney General. If this were not true, no purpose would be served by the attorneys for the State Engineer presenting to the court their views. Also a close analysis of the resolution of the Authority shows that the Authority was concerned with the contention that validation of the contract might impair State powers over the subject matter of the contract - watar. No refer- ence was, however I made respecting contentions of In- validity. I think the reason for this contrast is clear. The Authority realized that validation of the contract might impair such powers - invalidation should pose no such threat. In the resolution nothing more is stated concerning validity or invalidity, but in the prayer of the Authority in the answer it is expressly stated that "the Authority ii not taking any position on the validity of the contract," The resolution itself does not SO state. Thus, between the II