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11

TREATY WITH GREAT BRITAIN

Treaty for an amicable settlement of all causes of differences between the United States and Great Britain. (Signed at Washington May 8, 1871; ratifications exchanged June 17, 1871; proclaimed July 4, 1871; 17 Stat. 863)

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ARTICLE XXVI

[Navigation of St. Lawrence.]—The navigation of the river St. Lawrence, ascending and descending, from the forty-fifth parallel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain, or of the dominion of Canada, not inconsistent with such privilege of free navigation.

[Navigation of Yukon, Porcupine and Stikine.]-The navigation of the rivers Yukon, Porcupine, and Stikine, ascending and descending, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the subjects of her Britannic Majesty and to the citizens of the United States, subject to any laws and regulations of either country within its own territory, not inconsistent with such privilege of free navigation. (17 Stat. 872).

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12

DESERT LAND ACT

An act to provide for the sale of desert lands in certain States and Territories. (Act of March 3, 1877, ch. 107, 19 Stat. 377)

[Sec. 1. Desert land entries and patent-Water rights-Proof of reclamation-320 acres.]-It shall be lawful for any citizen of the United States, or any person of requisite age "who may be entitled to become a citizen, and who has filed his declaration to become such" and upon payment of twenty five cents per acre to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one-half section, by conducting water upon the same, within the period of three years thereafter, Provided, however, that the right to the use of water by the person so conducting the same, on or to any tract of desert land of three hundred and twenty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said one-half section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding three hundred and twenty acres to any one person, a patent for the same shall be issued to him. Except as provided in section 3 of the Act of June 16, 1955 (69 Stat. 138), as amended, no person may make more than one entry under this Act. However, in that entry one or more tracts may be included, and the tracts so entered need not be contiguous. The aggregate acreage of desert land which may be entered by any one person under this section shall not exceed three hundred and twenty acres, and all the tracts entered by one person shall be sufficiently close to each other to be managed satisfactorily as an economic unit, as determined under rules. and regulations issued by the Secretary of the Interior. (19 Stat. 377; § 1, Act of August 30, 1890, 26 Stat. 391; § 1, Act of August 14, 1958, 72 Stat. 596; 43 U.S.C. §321)

EXPLANATORY NOTES

1958 Amendment. Section 1 of the Act of August 14, 1958, 72 Stat. 596, inserted the last two sentences as a substitute for the original requirement that the tract of land covered by the entry had to be in compact form. For legislative history of the

1958 Act see S. 359, Public Law 85-641 in the 85th Congress; S. Rept. No. 270; H.R. Rept. No. 2324.

1890 Amendment. The Act of August 30, 1890, 26 Stat. 391, provided generally that no person entering public lands thereafter

DESERT LAND ACT

shall be permitted to acquire title to more than 320 acres in the aggregate. The original Act allowed entry and patent for 640

acres.

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Act of June 16, 1955, referred to in text, permits an additional desert land entry on certain mineral lands up to a total of 320 acres. Prior law had limited desert land entries on such lands to 160 acres.

Reference in the Text. Section 3 of the Sec. 2. [Desert lands defined-Proof.]-All lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated. (19 Stat. 377; 43 U.S.C. § 322)

EXPLANATORY NOTE

Codification. 43 U.S.C. § 322 also includes the reference from section 3 to the

administrative determination of what constitutes desert land.

Sec. 3. [States to which applied.]-This Act shall only apply to and take effect in the States of California, Oregon, Nevada, Colorado, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and North and South Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Secretary of the Interior or such officer as he may designate. (19 Stat. 377; Act of March 3, 1891, 26 Stat. 1097; § 403, 1916 Reorganization Plan No. 3, 60 Stat. 1100; 43 U.S.C., §§ 322, 323)

EXPLANATORY NOTES

Codification. The reference to States is codified in section 323, title 43, U.S. Code. The reference to administrative determination of what constitutes desert lands is codified in section 322.

States; 1891 Amendment. The State of Colorado was included by the Act of March 3, 1891, 26 Stat. 1097. The Territories referred to in the original act have now become states, and are so listed.

1946 Amendment. "Secretary of the Interior or such officer as he may designate" was substituted by section 403 of 1946 Reor

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ganization Plan No. 3, which also established the Bureau of Land Management.

Additional Provisions Omitted. The original 1877 Act consisted of the three sections set forth above. A number of additional sections and supplementary provisions have been enacted by Congress through the years, but are omitted here. They are codified generally as 43 U.S.C. §§ 324-39.

Editor's Note, Annotations. Annotations of opinions are included only to the extent deemed relevant to activities of the Bureau of Reclamation under this statute.

NOTES OF OPINIONS

Under departmental regulations (May 31, 1910, 38 L.D. 646, para. 78; currently 43 CFR 2226.4-6), a desert land entryman who owns a water right can rely on his own efforts to convey his water to his entry without assistance from a government project, thereby avoiding the requirements of the reclamation law, or he can participate in the project. In the latter case he must observe requirements of the reclamation law, including land limitations. Solicitor Barry

Opinion, 71 I.D. 496, 513 (1964), in re application of excess land laws to private lands in Imperial Irrigation District.

Where land in a desert-land entry is withdrawn under the Reclamation Act and the entry is subsequently cancelled, the withdrawal becomes effective as to such land upon the cancellation of the entry. George B. Willoughby, 60 I.D. 363 (1949). 2. Availability of water

In exercise of the discretionary authority vested in the Secretary under section 7 of the Taylor Grazing Act, as amended, 49 Stat. 1976 (1936), public land in the Imperial Valley, California, may be classified

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as not proper for disposition under the Desert Land Act, 19 Stat. 377, as amended, on the grounds that it would be contrary to the public interest at this time to increase the pressure on the inadequate water supply available for use in California from the Colorado River. Hugh S. Ritter, Thomas M. Bunn, 72 I.D. 111 (1965). See also Stephan H. Clarkson, 72 I.D. 138 (1965).

By a notice of December 2, 1965, the Secretary of the Interior repealed the suspension of a large number of desert land entries in Imperial and Riverside Counties, California, that had been pending for a number of years in anticipation of obtaining irrigation water from the Colorado River. The suspensions had been granted under the decision in Maggie L. Havens, A-5580 (October 11, 1923). The Secretary stated in the notice that it would be contrary to the public interest to increase the pressure on the inadequate water supply available for use in California from the Colorado River by permitting additional federally owned lands to be developed under the desert land laws unless clear eligibility exists or unless clear grounds for relief are shown.

In certain circumstances desert land entries in Imperial and Riverside Counties affected by the notice of December 2, 1965, repealing the suspension under Maggie L. Havens, A-5580 (October 11, 1923), which have been reclaimed or are in the process of being reclaimed, will be considered in accordance with the principles of equity and justice as authorized by 43 U.S.C. § 1161, even though development was not completed within the statutory life remaining in the entry after March 4, 1952. Clifton O. Myll, A-29920 (Supp. II), 72 I.D. 536 (1965), vacating 71 I.D. 458 (1964), as supplemented by 71 I.D. 486 (1964).

3. Water rights

In reviewing a license issued by the Federal Power Commission for a water power project on a non-navigable stream on reserved lands of the United States, it is not necessary for the court to pass upon the contention of the State of Oregon that the Acts of July 26, 1866, July 9, 1870, and the Desert Land Act of 1877 constitute an express Congressional delegation or conveyance to the State of the power to regulate the use of such waters because those Acts do not apply to reserved lands. Federal Power Commission v. Oregon, 349 U.S. 435, 446-48 (1955).

The Federal Government, as owner of the public domain, had the power to dispose of the land and water composing it together or separately; and by the Desert Land Act of 1877, if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the Government title to a parcel of land was not to carry with it a water-right, but all non-navigable waters were reserved for the use of the public under the laws of the various arid-land states. Ickes v. Fox, 300 U.S. 82, 95 (1937).

By section 9 of the Act of July 26, 1866, section 1 of the Desert Land Act of 1877, and section 18 of the Act of March 3, 1891, Congress recognized and assented to the appropriation of water under State laws in contravention of the common law rules of riparian rights; but it is not to be inferred that Congress thereby meant to confer on any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States. United States v. Rio Grande Dam and Irr. Co., 174 U.S. 690, 704-07 (1899).

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IRRIGATION SURVEYS; RESERVOIR SITES

[Extract from] An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1889, and for other purposes. (Act of October 2, 1888, ch. 1069, 25 Stat. 505)

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[Irrigation survey of arid region-Report of expenses-Withdrawal of lands-Opening of lands by proclamation.]—[There is appropriated] For the purpose of investigating the extent to which the arid region of the United States can be redeemed by irrigation, and the segregation of the irrigable lands in such arid region, and for the selection of sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows, and to make the necessary maps, including the pay of employees in field and in office, the cost of all instruments, apparatus, and materials, and all other necessary expenses connected therewith, the work to be performed by the Geological Survey, under the direction of the Secretary of the Interior, the sum of $100,000 or so much thereof as may be necessary. And the Director of the Geological Survey under the supervision of the Secretary of the Interior shall make a report to Congress on the first Monday in December of each year, showing in detail how the said money has been expended, the amount used for actual survey and engineer work in the field in locating sites for reservoirs and an itemized account of the expenditures under this appropriation. And all the lands which may hereafter be designated or selected by such United States surveys [for sites for reservoirs *** for irrigation purposes *** shall be segregated and reserved from entry or settlement from the date of location or selection by the United States until further provided by law: Provided, That such sites shall be restricted to and shall contain only so much land as is actually necessary for the construction and maintenance of reservoirs, excluding so far as practicable, lands occupied by actual settlers at the date of the location of said. reservoirs.] (25 Stat. 526)

EXPLANATORY NOTES

Editor's Note. The bracketed material represents an editorial interpretation of the 1888 law as amended by the Acts of August 30, 1890, and March 3, 1891, which are set forth below.

Original Text. The last sentence of the paragraph as originally enacted reads as follows: "And all the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches, or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches, or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement, or

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