WSP01690

• File Number: 8215.100
• Description: Other States Water Issues - California
• State: CA
• Basin: Statewide
• Date: 2/2/1954
• Author: Irrigation Districts
• Title: Which Way California
• Water Supply Pro - Doc Type: Publication

limited po.n of the Authority in its resolution enPt~ 2153
express statement 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.

In formulating those views care was exercised. to con-
form, so far as possible, to the resolution and the prayer.
It was only to the extent it was 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 parties 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. .

A theory believed to be sound was formulated whereby
the adverse implications 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 temporary 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 t~at purpose but to pro-
tect S.tate water law against impairment. Such a limited
position was considered aufQmatically to preclude us from
consideration of a number of issues raised in the proceed-
ing, such as the excess land provisions and others.

The court has rendered its decision invalidating the con-
tract and entered judgme,nt accordingly.

, ,Itls my considered opinion that there is nothing
In the decision and judgment In the Ivanhoe case,
properly Interpreted, impairing State law relating
to the development, control and use of water and
the decision and judgment should therefore be
affirmed.

This subject is more fully discussed 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
concernecl, 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-
ticipate in the pending appeal in the Ivanhoe case, and
as well in other cases presenting similar issues, to maintain
the principles I have here outlined.

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BRIEF SUMMARY OF POSITION PROP.D TO BE
TAKEN IN PENDING APPEALS IN CONTRACT
VALIDATION CASES
DECEMBER 29, 1953

In the event th~ Principal Attorney, Division of Water
Resources, and his staff, are authorized to aprear in the
pending appeals. in these cases on behalf 0 the State
Engineer and the Water Project Authority, or either of
them, it is proposed to adopt the following limited general
position. '

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 redamation
laws must acquire rights to the use of water for project
purposes in accordance with State law.

3. That in acquiring such rights the United States is
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 accordance with permits
issued by the State Engineer.

4. That in passing upon the validity of the contract the
Court should determine and declare the rights of the water
users and the relationships, rights, powers and duties of the
parties 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
Val.ley. Project allocated to irrigation and' assigned for
return by the water users. .

6. That SeCtion 9(e) of the Reclamation Project Act
authorizes water delivery contracts only as " temporary
expedient. under circumstances which do not. permit exec;u-
tion of e repayment contract, to remain in'effect until such
time as a 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-
tar 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 is not proposed to argue other legal questions
that have been raised by other parties to the proceeding.

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