See Report No. 1468, April 7, 1902, House Reports, volume 6, Fifty-seventh Congress, first session, 1901-2 (No. 4404). Mr. Mondell, chairman of the Irrigation Committee of the House, after the House had resolved itself into Committee of the Whole, took the floor and in an elaborate speech explained and supported the bill. (See p. 6674.) At page 6678 he said, among other things: "Under nearly every project undertaken by the Government there will undoubt. edly be some lands in private ownership; and it would be manifestly unjust and inequitable not to provide water for these lands, providing their owners are willing to comply with the conditions of the act." 3709 [Memorandum of authorities construing act of June 17, 1902 (reclamation act).] On August 30, 1904, Acting Secretary Ryan addressed a letter to the Director of the Geological Survey, which letter is set forth in volume 33 of the Land Decisions, beginning at page 202. In this letter the following language is used (see p. 204): "But the primary object of the act of June 17, 1902, is the reclamation of the arid public lands. This important fact should be kept prominently in view in selecting sites for reservoirs to be constructed under said act, so as to avoid as far as possible any complications growing out of the private ownership of lands within the irrigable area and of rights to the use of the waters. It is probable, however, that no project undertaken under the reclamation act will find the field entirely free of individual interests, and hence it is important to devise some plan by which these interests may be brought in accord with the Government's plans in each instance. They should be so handled as to become elements of harmony and strength, rather than of discord and weakness, in the working out of the project." In the Williston Land Company case, decided February 2, 1909 (37 L. D., 428), the following language is used by First Assistant Secretary Pierce: The evident policy of the act is to render the arid public lands capable of productive agriculture and to assure their disposal in small holdings as homes of a resident home-owning agricultural population. It was known and recognized in the act that pioneers had gone upon these fertile valley lands, reduced some of them to private ownership, and appropriated some of the available waters.' In United States v. Burley et al. (172 Federal Reporter, 615), decided March 29, 1909, by Judge Dietrich, United States district judge for the State of Idaho, the following language is used (see pp. 617-618): "The precise point upon which defendant chiefly relies in urging that the proceeding is without authority of law is that one of the purposes for which the reservoir is to be used is the irrigation of lands which had passed into private ownership prior to the inception of the project. Whether or not, under the Constitution, Congress is without the power to authorize the expenditure of public money and the expropriation of private property for the irrigation of private lands exclusively, it is unnecessary at this time to inquire. As I view the act under which the plaintiff is proceeding, it was not intended thereby to confer upon the Secretary of the Interior such authority. At the time the act was passed the Government was the proprietor of boundless tracts of arid lands, practically worthless in their natural condition. The smaller, more accessible streams had been largely appropriated for the irrigation of private lands. Private capital had not to any considerable extent looked with approval upon the usually speculative and often perilous enterprise of lifting from the deep canyons, in which they not infrequently flow, the waters of the larger streams for the irrigation of great bodies of land, as yet either wholly unoccupied or at most but sparsely settled, and as a rule such lands would not be purchased or entered without some assurance of water for their future irrigation. Contemplating these conditions, Congress passed this act, primarily for the reclamation of these public lands. The Government, as a proprietor, was directly interested in a pecuniary way in improving and rendering marketable that for which in its natural condition there was neither use nor demand. "But in carrying out this purpose it was foreseen that the administrative officers would encounter conditions where it would be both impracticable and unjust for them to proceed without the cooperation of private owners. Of any specified tract a considerable portion may have passed into private ownership before the law was enacted, or, after the enactment, before the land could be preliminarily withdrawn from entry. It might be impracticable for the Government to proceed to the irrigation of the residue of public land in such a tract, unassisted by private owners, because of an inadequate acreage to justify the expense necessarily entailed by the magnitude of the enterprise. There would be no practicable relation between the cost of the project and the value of the lands owned by the Government when supplied with water for irrigation. And, if practicable for the Government to proceed alone, injustice might be done to private owners, where the aggregate of private lands is so small that an enterprise intended exclusively for their irrigation is not feasible. Generally speaking, the larger the area supplied the less the acreage charge for water; and hence as a usual thing it is highly desirable, and not infrequently 3710 absolutely essential to success, that all owners of lands embraced in the same general tract join in the construction and maintenance of the primary irrigation works. That the act clearly contemplates such cooperation between the Government and private owners is not open to discussion, and I am unable to yield to the view that Congress, by reason of any constitutional limitations, is precluded from authorizing such a sensible and necessary mode of procedure if the Government is to render available for use and marketable large tracts of its own land." In the case of Kansas v. Colorado (206 U. S., 46) the opinion is as follows: In this case the Government intervened. Mr. Justice Brewer rendered the opinion of the court. In referring to the Government's petition of intervention, he stated that it rested upon the Government's alleged duty of legislating for the reclamation of arid lands (see p. 86), and that the Government had "the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands, and for that purpose to appropriate the accessible waters." (See p. 87.) Farther along on the same page, in referring to the Government's main proposition, the learned justice said: "In other words, the determination of the rights of the two States inter sese in regard to the flow of waters in the Arkansas River is subordinate to a superior right on the part of the National Government to control the whole system of the reclamation of arid lands. That involves the question whether the reclamation of arid lands is one of the powers granted to the General Government." The learned justice then discussed the question involved. Taking up the eighth section of the first article of the Constitution, which contains the enumeration of the powers granted to Congress, he stated, among other things (see p. 88): "We must look beyond section 8 for congressional authority over arid lands, and it is said to be found in the second paragraph of section 3 of Article IV, reading: 'The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.' On page 89 the learned justice uses the following language in respect to said section 3 of Article IV, viz: "But clearly it does not grant to Congress any legislative control over the States, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits." The learned justice then takes up the tenth amendment to the Constitution and applying it to the argument of the Government's counsel, says, on page 90: This amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted." On page 91 the learned justice quotes from the decision of the Supreme Court in the case of Fairbank v. United States (181 U. S., 283, 288), the last sentence of which quotation reads as follows: "The true spirit of constitutional interpretation in both directions is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose. "This very matter of the reclamation of arid lands illustrates this: At the time of the adoption of the Constitution within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called for any further 3711 action than that which might be taken by the legislature of the State, in which any particular tract of such land was to be found, and the Constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But if no such power has been granted, none can be exercised. "It does not follow from this that the National Government is entirely powerless in respect to this matter. These arid lands are largely within the Territories, and over them, by virtue of the second paragraph of section 3 of Article IV, heretofore quoted, or by virtue of the power vested in the National Government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitution, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the States, at least of the Western States, the National Government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid land are to be found mainly, if not only, in the western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen, and it would be strange if, in the absence of a definite grant of power, the National Government could enter the territory of the States along the Atlantic and legislate in respect to improving by irrigation or otherwise the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation." [United States v. Hanson (167 Fed. Rep., 881), circuit court of appeals; ninth circuit.] In this case the defendant in error raised for the first time in the circuit court of appeals the question of the constitutionality of the reclamation act. He based his contention upon four grounds, the first of which reads (see p. 883): "That the work to be done and the expenditures to be made under it are not public and governmental in character and are not within the limited powers belonging to the Federal Government." The second ground was as follows: "Conceding that the Government has the power to pass such an act affecting public lands in a Territory, it has not such power as to lands within the States or in any localities where there are no government lands." The court held that the act was a valid exercise of the power conferred by the Constitution upon Congress by virtue of section 3 of Article IV, and in this connection said (see p. 883): "In pursuance of that power, Congress passed the reclamation act to make marketable and habitable large areas of desert land within the public domain, which lands are valueless and uninhabitable unless reclaimed by irrigation, and the irrigation whereof is impracticable except upon expenditure of large sums of money in the construction of a system of reservoirs and distributing canals." The court then refers to the previous acts of Congress which were passed for the purpose of making available for settlement the arid public lands, and in this connection uses the following language: "These efforts having failed to accomplish the desired end, the reclamation act was passed. Congress, being the owner of the lands and vested with unlimited authority over the same, as it has been held by numerous decisions of the Supreme Court, had unquestionably the right to expend money thereon for their improvement. It has always exercised the right to expend money in causing surveys of the public lands to be made, and in providing for the protection of the public lands. Nor do we discover any ground for holding that its power over the public lands within a State stands upon any different basis from that of its power over public lands in a Territory. Although the Government on admitting a State into the Union relinquishes its control of the disposition of the waters of the State, except in so far as the regulation of commerce is concerned, it relinquishes none of its rights over the public lands included within the territorial limits of the State. The Government is still sovereign over 3712 such lands, and, in the nature of things, so long as it does not interfere with state legislation over waters of the State it must have the same power to improve, protect, and offer for settlement or sale the public lands within a Territory. The power of Congress to govern the Territories has nothing to do with this power over the public lands." 3064 Cooperative certificates, Reclamation Service. DEPARTMENT OF THE INTERIOR, Messrs. JAMES B. POWERS, E. J. PATCH, and A. R. WHITE, Committee, Weiser, Idaho. GENTLEMEN: I am in receipt of your letter, not dated, transmitting a petition of a number of landholders in Malheur County, Oreg., asking that this department consider the feasibility of constructing that part of the Malheur project lying on the north and west sides of the Malheur River and in the valley of Snake River. The condition of the reclamation fund will not admit of taking up more work at the present time, or until many details now in hand are more nearly completed. I shall bear in mind this portion of the former Malheur project, and if in the future it should become practicable, the question of taking up such a project will be carefully considered. This same petition has reached me through a number of different channels and replies have been prepared in general that the matter will be referred to our engineers in the field for further advice, although, as above stated, the money available will not justify our taking up new work in the near future. It is not necessary to send a large number of these petitions to government officials, as equal attention will be given to one letter as to a dozen; in fact, I think that it is somewhat of an annoyance to a busy man to be asked to look after certain details and then find that some one else has been asked to attend to the same matter. He naturally feels that he is not being treated fairly. If, therefore, for reasons of your own, you choose to send the same request to a number of different persons, I suggest that you notify each man as to whom you have sent the paper, so that all may not waste time and energy in following the matter up. Very truly, yours, F. H. NEWELL, Director. 3063 DEPARTMENT OF THE INTERIOR, The SECRETARY OF THE INTERIOR. SIR: In accordance with your request to submit recommendation regarding the feasibility of proceeding with the construction of the irrigation project in Grand Valley in the neighborhood of Grand Junction, I beg leave to submit the following for your consideration. In another letter of even date the various steps in connection with this project are set forth and the dates are given. Preliminary surveys in this valley were made in 1903, and a board of engineers on examination reported a feasible project and recommended further surveys. Owing to a desire of a portion of the landowners to construct this project under the district system no further surveys were made at that time. In 1908, after many unsuccessful attempts to construct the project by private or district enterprise, an appeal was made to the Reclamation Service to take up the project, and surveys were made which have demonstrated beyond question the financial feasibility of the project. No other point is known in the reclamation States where an irrigation project presents more favorable features from a physical point of view, and it is believed that money invested under the provisions of the reclamation act would be returned with a promptness and certainty not surpassed under any project. The alleged desire of certain private interests to now construct the project is disputed by their long neglect to do so, and there is practically no desire on the part of the landowners to have it done in this manner. They have, with practical unanimity, expressed a preference to wait several years and have the project carried out by the Reclamation Service. From every point of view the project is a very feasible and desirable one to carry out under the provisions of the reclamation act. The one tangible objection to undertaking it is a very strong one, namely, the lack of funds. The number and magnitude of the projects already taken up will absorb the available funds for some time to come. There is nothing in the present situation, however, that requires any large investment of funds until they are conveniently available in the reclamation fund, and however this may be, it appears that the department is definitely committed by the contract of February 25 to allot and expend a sum equal to that raised by the local association up to the limit of $125,000. It is respectfully recommended that in view of the said contract the work of construction and the acquisition of right of way, as authorized by the department on March 27, be resumed. Very respectfully, A. P. DAVIS, Acting Director. 3671 THE SECRETARY OF THE INTERIOR, MY DEAR MR. WICKERSHAM: I herewith hand you, pursuant to the direction of the President at Cabinet meeting Friday last, a summary of facts and a statement of the question which I would like to have answered by you in order to enable me to proceed safely within the law on the Grand Junction irrigation project, as well as others which are now in progress of construction. These questions involve essential administrative features, and are of urgent importance at this particular moment. I would appreciate a speedy disposition of these questions by your office, as great pressure is being made upon me to act under this Grand Valley contract, and I am holding an inspector in readiness to proceed to the field, in view of your answers to these questions. R. A. BALLINGER, Secretary. Yours, very respectfully, Hon. GEO. W. WICKERSHAM, 1566 The Attorney-General. DEPARTMENT OF THE INTERIOR, The ATTORNEY-GENERAL. SIR: The act of Congress approved June 17, 1902 (32 Stat., 388), commonly known as the "reclamation act," provides in section 1 that all moneys received from the sale of public lands in the States named, excepting 5 per cent thereof set aside by law for other purposes, shall be set aside as a special fund in the Treasury, "to be known as the reclamation fund, to be used in the examination and survey for and construction and maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semiarid lands in the said States and Territories, and for the payment of all other expenses provided for in this act." The Secretary of the Interior was therein authorized and directed to make examinations and surveys for and to construct irrigation works, and in connection therewith was authorized to withdraw such lands as, in his judgment, were deemed necessary for occupation by irrigation works; also to withdraw the lands to be irrigated from such works, the lands thereafter to be subject to entry under the homestead laws only. Section 3 of the act provides that upon completion of preliminary surveys in such projects and of the estimates of cost, the Secretary shall determine "whether or not said project is practicable and advisable.' Section 4 provides that upon determination by the Secretary "that any irrigation project is practicable, he may cause to be let contracts for the construction of the same in such portions or sections as it may be practicable to construct and complete as parts of the whole project, providing the necessary funds for such portions or sections are available in the reclamation fund." It is further provided that the charges which are to be assessed upon the lands irrigated are to be determined "with a view of returning to the reclamation fund the estimated cost of the construction of the project." Section 5 provides for the payment of construction charges to the receiver of the local land office, and provides that all moneys received shall be paid into the reclamation fund. Section 6 authorizes and directs the Secretary of the Interior to use the reclamation fund for the operation and maintenance of all reservoirs and irrigation works constructed under the provisions of the act. It is further provided in said section that when the payments required have been made for the major part of the lands irrigated in any of said projects the management and operations of such works shall pass to the owners of such lands, "to be maintained at their expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior: Provided, That the title to and the management and operation of the reservoirs and works necessary for their protection and reservation shall remain in the Government until otherwise provided by Congress." |