96 LITTLE KLAMATH, TULE, AND GOOSE LAKES ceding to the United States all right, title, interest, or claim of the State of California to any lands uncovered by the lowering of the water levels of any or all of said lakes not already disposed of by the State. "The people of the State of California, represented in senate and assembly, do enact as follows: "SECTION 1. That for the purpose of aiding in the operations of irrigation and reclamation conducted by the Reclamation Service of the United States, established by the act of Congress approved June seventeenth, nineteen hundred and two (Thirty-second Statutes, page three hundred and eighty-eight), known as the reclamation act, the United States is hereby authorized to lower the water levels of any or all of the following lakes: Lower or Little Klamath Lake, Tule or Rhett Lake, Goose Lake, and Clear Lake, situated in Siskiyou and Modoc Counties, as shown by the map of the United States Geological Survey, and to use any part or all of the beds of said lakes for the storage of water in connection with such operations. "SEC. 2. And there is hereby ceded to the United States all the right, title, interest, or claim of this State to any lands uncovered by the lowering of the water levels of any or all of said lakes not already disposed of by this State; and the lands hereby ceded may be disposed of by the United States free of any claim on the part of this State in any manner that may be deemed advisable by the authorized agencies of the United States in pursuance of the provisions of said reclamation act: Provided, That this act shall not be in effect as to lakes herein named, which lie partly in the State of Oregon, until a similar cession has been made by that State." Approved, February 3, 1905. (Cal. Stats. 1905, p. 4.) EXPLANATORY NOTES Supplementary Provision: Agricultural Entries. The Act of May 27, 1920, authorizes the Secretary of the Interior to determine the ceded lands which will be opened to agricultural development, and provides that such lands will be open to entry under the homestead laws. The Act appears herein in chronological order. Cross Reference, Consent to Suit. The Act of March 3, 1923, 42 Stat. 1438, grants the consent of Congress to the State of California to bring suit against the United States to determine title to lands alleged to have been ceded by the State to the United States and to determine title to any lands uncovered by the lowering of the water levels of the lakes referred to in this Act. The 1923 Act appears herein in chronological order. Contract with California Oregon Power Co. By contract executed in 1917 on behalf of the United States by Secretary Franklin K. Lane the California Oregon Power Co. was given the right to construct and operate a dam at the outlet of Upper Klamath Lake and to regulate the flow of the water in the lake for 50 years. For a copy of this contract and a large amount of data concerning it see joint hearings by the Senate and House committees in connection with S. 3189 and H.R. 9493, first session Sixty-ninth Congress. The contract was amended in 1956. For a discussion of the relationship between the dam and the various power projects of the company downstream on Link and Klamath Rivers, see California Oregon Power Co. v. Federal Power Commission, 239 F. 2d 426 (D.C. Cir. 1956), and California Oregon Power Co., 13 F.P.C. 1 (1954) and 15 F.P.C. 14 (1956). Legislative History. S. 6312, Public Law 66, in the 58th Congress. S. Rept. No. 3067. H.R. Rept. No. 4092. NOTES OF OPINIONS The State of California made application to the General Land Office for a survey, with a view to the subsequent issuance of patent to the State under the swamp-land act of September 28, 1850 (9 Stat. 519), of alleged swamp and overflowed lands in T. 47 N., Rs. 2 and 3 E., and T. 48 N., Rs. 1, 2, and 3 E., Mount Diablo meridian, Calif. The lands for which survey and patent were asked are areas lying between the precipitous banks in the lower portion of the lower Klamath Lake area and the high ground. The department, in denying the application of the State, held that under the act of the State of California of February 3, 1905 (California Statutes, 1905, p. 4), these lands were ceded to the United States, and are now held subject to disposi tion only under the general reclamation laws; that the department is without LITTLE KLAMATH, TULE, AND GOOSE LAKES authority to recognize or entertain any claim on the part of the State therefor under the swamp-land act or under any other existing law; and that the title of the United States to these lands can be divested only by act of Congress. State of California, 47 L.D. 207 (1919). 2. Bird refuge Under the Act of February 9, 1905, and the cession statutes of the States of Oregon and California relating thereto; the Act of May 27, 1920; appropriations of water made by the United States for agricultural and power development under section 47-1201 of the Oregon Code, 1930; and the contracts with the California-Oregon Power Company relating to a dam in Upper Klamath Lake to control the flow in the Klamath River, the United States may use waters of the Klamath River and lands of 97 Lower Klamath Lake for agricultural purposes, whether such lands are used for flowage purposes or uncovered and used for agricultural purposes, but is not authorized to use such waters or lands for establishment of a bird refuge. Solicitor Finney Opinion, 53 I.D. 693 (1932). 3. Homestead entry The Secretary of the Interior has the authority, but is not required, to open for homestead entry under the reclamation laws any or all of the lands, whether ceded by the states of California or Oregon or public lands in the Tule Lake Unit of the Tule Lake Wild Life Refuge, and the Klamath Straits Unit, the Sheepy Lake West Unit, and the Sheepy Lake East Unit of the Klamath Lake Reservation for the protection of native birds. Solicitor White Opinion, M-36157 (December 12, 1952). 98 RIO GRANDE RECLAMATION PROJECT An act relating to the construction of a dam and reservoir on the Rio Grande, in New Mexico, for the impounding of flood waters of said river for the purposes of irrigation. (Act of February 25, 1905, ch. 798, 33 Stat. 814) [Reclamation development in Texas and New Mexico authorized from proposed Engle Dam on Rio Grande.]—The provisions of the reclamation act approved June seventeenth, nineteen hundred and two, shall be extended for the purposes of this act to the portion of the State of Texas bordering upon the Rio Grande which can be irrigated from a dam to be constructed near Engle, in the Territory of New Mexico, on the Rio Grande, to store the flood waters of that river, and if there shall be ascertained to be sufficient land in New Mexico and in Texas which can be supplied with the stored water at a cost which shall render the project feasible and return to the reclamation fund the cost of the enterprise, then the Secretary of the Interior may proceed with the work of constructing a dam on the Rio Grande as part of the general system of irrigation, should all other conditions as regards feasibility be found satisfactory. (33) Stat. 814) EXPLANATORY NOTES Not Codified. This Act is not codified in the U.S. Code. Elephant Butte Dam. The dam herein referred to was completed in 1916 and is known as the Elephant Butte Dam. Located about 125 miles north of El Paso, Texas, it creates the major storage reservoir on the Rio Grande within the United States. Caballo Dam. Caballo Dam, a related flood control and power regulating structure completed in 1938, is located 23 miles downstream from Elephant Butte Dam. Flood control operations of the dam are governed by the agreement of October 9, 1935, between the Departments of State and Interior. The dam is discussed in annexes to the Convention between the United States and Mexico for the Rectification of the Rio Grande of February 1, 1933, 48 Stat. 1629 ff. Cross Reference, Reclamation Act Extended to Texas. The Act of June 12, 1906, 34 Stat. 259, extended the Reclamation Act to the entire State of Texas. The 1906 Act appears herein in chronological order. Construction of Private Dam Enjoined. Protracted litigation in which the United States obtained a permanent injunction against the construction by a private company of an irrigation diversion dam across the river in New Mexico near Engle on the grounds that navigability of an international river would be adversely affected, is reported in United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690 (1899); United States v. Rio Grande Dam and Írrigation Co., 184 U.S. 416 (1902); and Rio Grande Dam and Irrigation Co. v. United States, 215 U.S. 266 (1909). The proceedings were instituted at the direction of the Attorney General, 21 Op. Atty. Gen. 518 (1897). Cross Reference, 1906 Convention with Mexico. The Convention with Mexico of May 21, 1906 (effective January 16, 1907), obligates the United States, after completion of the Engle (Elephant Butte) Dam, to deliver 60,000 acre-feet of water annually to Mexico at the headworks of the Old Mexican Canal located above the city of Juarez, Mexico. The Convention appears herein in chronological order. 1907 Nonreimbursable Appropriation. The Act of March 4, 1907, 34 Stat. 1295, appropriates $1,000,000 toward the cost of the Elephant Butte Dam in recognition of the obligation to deliver water to Mexico, with the balance of the cost of the project to be allocated from the reclamation fund and returned under the reclamation laws. The text of the provision appears herein in chronological order. Supplementary Provisions: Drainage Expenses. The Sundry Civil Expenses Appropriation Act of June 12, 1917, 40 Stat. 148, and subsequent appropriation acts, and the Act of October 6, 1917, 40 Stat. 426, con RIO GRANDE RECLAMATION PROJECT tain special limitations on the expenditure of funds for drainage purposes in connection with the Rio Grande project. The texts of the relevant provisions appear herein in chronological order. Supplementary Provisions: Adjustment of Charges. Section 30 of the Omnibus Adjustment Act of 1926, 44 Stat. 643, and the Act of May 28, 1928, 45 Stat. 785, relate to adjustments in payment of charges. The texts of the relevant provisions appear herein in chronological order. Supplementary Provision: American Diversion Dam. Under the authority of the Act of August 29, 1935, 49 Stat. 961, the United States section of the International Boundary Commission constructed and operates a new diversion dam that supplies water to the old Franklin Canal. This structure, called the American Diversion Dam, is located on the Rio Grande 2 miles northwest of El Paso immediately above the point where the river becomes the international boundary line. The 1935 Act appears herein in chronological order. International Boundary Commission. The International Boundary Commission was created pursuant to the Convention with Mexico of March 1, 1889 (effective December 24, 1890), 26 Stat. 1512. It was reconstituted the International Boundary and Water Commission, United States and Mexico, by the Treaty with Mexico of February 3, 1944 (effective November 8, 1945), 59 Stat. 1219. The 1944 Treaty appears herein in chronological order. Cross References, Statutory Authority of the Commission. The Act of August 19, 1935, which appears herein in chronological order, provides general authority for the work of the Commission, and the notes following the Act briefly summarize other statutory provisions relating to its program. 99 Supplementary Provision: Rio Grande Canalization Project. The Act of June 4, 1936, 49 Stat. 1463, authorized the United States Section of the Commission to construct and operate canalization works in the river between Caballo Dam and the American Diversion Dam. The Act appears herein in chronological order. Supplementary Provision: Power Development. A provision in the Interior Department Appropriation Act of August 9, 1937, 50 Stat. 593, relates to the repayment of the cost of power facilities and of certain costs of Elephant Butte and Caballo Dams. The text of the provision appears herein in chronological order. Supplementary Provision: Recreation Development. The Act of July 25, 1962, 76 Stat. 171, authorizes recreation development by the Secretary of the Interior at Elephant Butte and Caballo Reservoirs. The Act appears herein in chronological order. Supplementary Provision: Franklin Canal Relocation. Pursuant to the authority contained in section 1 of the AmericanMexican Chamizal Act of 1964, enacted April 29, 1964, 78 Stat. 184, the International Boundary Commission, United States and Mexico, relocated 1.7 miles of the Franklin Canal, which is part of the distribution system of the Rio Grande project. For legislative history of the 1964 Act see S. 2394 in the 88th Congress; S. Rept. No. 868; H.R. Rept. No. 1233. Cross References, Miscellaneous. Related subjects include the Rio Grande Compact, Rio Grande rectification project (I.B.W.C.), Middle Rio Grande project (upstream from Elephant Butte Reservoir), and the 1944 treaty with Mexico. Legislative History. H.R. 17939, Public Law 104 in the 58th Congress. H.R. Rept. No. 3990; S. Rept. No. 3915. NOTES OF OPINIONS Lands of the Hudspeth County Conservation and Reclamation District No. 1 are not part of the Rio Grande reclamation project. Bean v. United States, 163 F. Supp. 838 (Ct. Cl. 1958), cert. denied, 358 U.S. 906 (1958). 2. Water rights The delivery of water by the United States from the Rio Grande reclamation project under a Warren Act contract conveys to water users no vested rights to the use of the water, but the rights of the contractor are governed by the contract alone. Bean v. United States, 163 F. Supp. 838 (Ct. Cl. 1958), cert. denied, 358 U.S. 906 (1958). The abandonment of seepage waters from the Rio Grande reclamation project in the past by the United States did not constitute abandonment of the right to use such waters when needed in the future; and plaintiffs' use of such seepage waters did not create in them rights superior to those of the United States to control and prescribe 100 RIO GRANDE RECLAMATION PROJECT the use of these waters. Bean v. United States, 163 F. Supp. 838 (Ct. Cl. 1958), cert. denied, 358 U.S. 906 (1958). The City of El Paso could not claim a right to water from the Rio Grande River in an amount equal to city sewage effluent discharged into the river, when by an earlier agreement the city surrendered all control over the effluent once it entered the river. El Paso County Water Improvement District No. 1 v. City of El Paso, 243 F. 2d 927 (5th Cir. 1957), modifying 133 F. Supp. 894 (W.D. Tex. 1955), cert. denied, 355 U.S. 820 (1957). Where the City of El Paso applied to the appropriate state agency for a water permit, a compromise settlement was arranged between the city and an irrigation district opposing the permit, and thereafter the permit was issued, then the conditions of the compromise agreement are binding upon the parties. El Paso County Water Improvement District No. 1 v. City of El Paso, 243 F. 2d 927 (5th Cir. 1957), modifying 133 F. Supp. 894 (W.D. Tex 1955), cert. denied, 355 U.S. 820 (1957). The United States' rights as a storer and carrier of project water are not exhausted with a single application of the water to land, but the water may be recaptured and reused as developed water. Hudspeth County Conservation & Reclamation Dist. No. 1 v. Robbins, 213 F. 2d 425 (5th Cir. 1954), cert. denied, 348 U.S. 833 (1954). 3. Bridges The United States in receiving a deed for the interest of the City of El Paso in a canal right-of-way and agreeing to "maintain" bridges over the canal, did not bind itself to construct new bridges across the canal as increased traffic conditions required. El Paso County Water Improvement District No. 1 v. City of El Paso, 243 F. 2d 927 (5th Cir. 1957), modifying 133 F. Supp. 894 (W.D. Tex. 1955), cert denied, 355 U.S. 820 (1957). 4. Flood control Operation of Caballo Reservoir for flood control is subject to the Agreement of October 9, 1935, between the Departments of State and Interior, irrespective of the authority of the Secretary of War to promulgate flood control regulations pursuant to section 7 of the Flood Control Act of 1944. Memorandum of Chief Counsel Fix, May 2, 1946. 5. Excess lands The Secretary of the Interior has authority under the Act of February 25, 1920, 41 Stat. 451, to enter into a contract to supply to the City of El Paso an amount of water from the Rio Grande reclamation project representing the water service for certain project lands acquired by the city and retired from irrigation farming, but not to exceed a maximum of 31⁄2 acre-feet of water a year for each acre of such land acquired by the city. The city's ownership of some 1400 acres of such land does not violate the 160-acre limitation of reclamation law. El Paso County Water Improvement District No. 1 v. City of El Paso, 133 F. Supp. 894, 918-920 (W.C. Tex. 1955), affirmed, 243 F. 2d. 927 (5th Cir. 1957), cert. dened, 355 U.S. 820 (1957). 6. Treaty obligation The Secretary of the Interior has the discretion to deny an application for a right of way for a reservoir in Colorado that would store Rio Grande water for irrigation purposes, until a determination can be made that such a development would not interfere with the treaty obligation to deliver Rio Grande water to Mexico and with the Engle Dam project. Francis W. Bosco, 39 L.D. 104 (1910). 7. Compact An analysis of the Rio Grande Compact shows convincingly that the water of the river belonging to Texas is definitely committed to the service of the Rio Grande reclamation project. El Paso County Water Improvement District No. 1, 133 F. Supp. 894, 907 (W.D. Tex. 1955), affirmed on other grounds, 243 F. 2d 927 (5th Cir. 1957), cert. denied 355 U.S. 820 (1957). 8. Suits against United States Section 208 of the Act of July 10, 1952, consenting to the joinder of the United States in a suit "for the adjudication of rights to the use of water of a river system or other source," does not apply to an action for a declaration of rights in certain drainage waters from the Rio Grande reclamation project and for an injunction restraining Bureau of Reclamation officials from interfering with such rights. Miller v. Jennings, 243 F. 2d 157 (5th Cir. 1957), cert. denied, 355 U.S. 827 (1957). In an action to enjoin diversion of waters from the Elephant Butte reservoir to a federal game refuge, the United States was an indispensable party, as any judgment would expend itself on the administration of public laws, and therefore the action had to be dismissed. Elephant Butte Irrigation Dist. v. Gatlin, 61 N. Mex. 58, 294 P. 2d 628 (1956). The United States is a necessary party to a suit for an injunction restraining_the responsible officials of the Bureau of Reclamation from diverting seepage waters |