WSP06010

• File Number: 8210.140.20 A
• Description: Colorado River Basin Organizations - States Forum ‎(CRBSF)‎ - Colorado River Board Of California
• State: CA
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 11/27/1953
• Author: Unknown
• Title: Position of Water Project Authority on Appeal in Contract Validation Actions - Referred to on Page 3 of Which Way California
• Water Supply Pro - Doc Type: Report/Study

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The 1953 ....ion of the legi.lature .dopted Senate Concurrent Reeolution
No. 80 which reque.ts the Authority and the Stat. Engineer to appear a. reapondents
in the Ivanhoe ease by and through the Principal Attorney for the Division of Water
Resources and hie staff' lito the end that there 1s a full presentation, including
that of the reepondents Water Project Authority and State Engineer, of all i.sues to
the appellate courts of thi. State and to the court. of the United States, if an
appeal 1s lodged 1n those courts in the ease in question". Even th.ough this reso-
lution 15 not strictly a "statute" J nevertheless it does express the viewpoint of
the Legislature and should, it is believed, be given due consideration.

Although the foregoing summary is a aharply curtailsd statement of the
factual history of the controversy and litigation, it is believed to include those
facts which are relevant to a proper consideration of the Authority's future posi-
tion on the appeals in the Ivanhoe and Nadera ca.es. While the litigants, ineluding
the Attorney General, have argued a number of controvereiallegal problems relating
to the validity of certain provisione of the contract, and tha court 'a jud@llent
necessarily included 8 determination of those questions, neither the Authority nor
tha State Enginaar haa heretofore participated in those arguments and we do not be-
lieve that the Authority i. requirad to do so upon appaal. Wa beliave the argument
on such subjects can be left to those directly concerned, However, it is submitted
that the matters previoU5ly referred to--ownership of water by the State, the right
of the State to regulate, control and administer appropriations and UBe of water
according to State law and in the publio interaat, tha right of public districts
and landowners to receive and beneficially UBe project water in perpetuity Bubject
only to reasonabla conditions impo.ad by the State Engineer in the public intareat
and to payment of proper charges, and the true status of the Un1 tad States: as merely
a carrier and distributor of the water in trust for the water users (SUbject of
course to a return of its investment and reasonable safeguards therefor), Bre matters
of transcendent importance which vitally affect the future welfare of this state and
its inhabitants and are the proper concern of the Authority" insofar as the Central
Valley Project i. affected, and of tha Stats Engineer on a .tat.-wide basis.

The judgment of the trial court recognizes state ownership and state con-
trol of its water resources. It affirms and protects the right of the State
E'ngineer to condition permits to be issued for the appropriation of project water
in the public interest. It declares the trust status of the Uhited States and the
nece.sity for the United State. to oomply with state law. regulating the appropria-
tion of water in California. It determines that the districts are entitled to a
contract which recognizes the right to a permanent supply of water. In all of these
matters, the trial court has adequately safeguarded the interest of the state and
its people, and 'We believe its concluelons in respect thereto should be affirmed.
It is considered that as respondents on appeal, it would be proper to limit our
position to discussion of these matters and closely related issues" ae was done
before the trial court, without becoming involved in argument over the other indi-
cated questions.

It is true that the trial oourt, in ita findinga of fact and conclusiona
of law, went further than we advocated and declared that upon filing of applications
by the Department of Finance to appropriate watar for tha benefit of the Cantral
Valley Project, the landowners within the proposed service area acquired vested
property rights to receive and use a proportionate share of water to be made avail-
able by the project works, Bubject to the powers of the State Engineer previously
set forth. It is our position that upon filing an application, the applicant
acquiras meraly a conditional right of priority which oan ripen into a vested right
to the usa of water only when benaficia1 use i. comp1ated pursuant to parm1t i.aued
by tha State Engineer. With re.pect to the applications filad by the State for the
benefit of the Central Valley Project, which were later aaaigned to the United
States Bureau of Reclamation as the constructing agency, this cond1 tional right of
priority was and 18 held in trust for the beneficiaries" the water users, who become
identified as such upon execution of valid contracts between their districts and
the United States or upon dalivery of watar to them. However, it i. believed that
this distinction can be adaquately explainad and olarified in a ra.pondent's brief
without attacking the judgment itself.

Tha conclusion of the trial court that under California law the right to
the use of water is appurtenant to the land upon which it is used, is considered to
be undeniably correct as applied to the facts under review. Reference is made to
my memorandum. to A. D. Edmonston, Executive Officer, Water Project Authority,
entitled "Appurtenant Water Rights in California", dated May 15, 1953, for a. co:rlp:re-
hensive renev of California law upon this question. The apparent exception where