Under the provisions of the Reclamation Act, June 17, 1902, and the Warren Act, February 21, 1911, the Secretary of the Interior is authorized and has the power to contract with an irrigation district for supplying water to such district, or partially supplying it with water, for the irrigation of the lands therein and for the drainage of other lands within such district. Pioneer Irrigation District v. Stone, 23 Idaho 344, 130 Pac. 382 (1913), Accord: Hillcrest Irrigation District v. Brose, 24 Idaho 376, 133 Pac. 663 (1913); Nampa and Meridian Irrigation District v. Petrie, et al., 28 Idaho 227, 153 Pac. 425 (1915); and Nampa and Meridian Irrigation District v. Petrie, 37 Idaho 45, 223 Pac. 531 (1924).

A State may be a contracting party under the Warren Act. Solicitor Barry Opinion, 68 I.D. 412, 423 (1961), dictum, in re proposed agreement with the State of California covering the San Luis Unit.

2. Appropriation and 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, 143 Ct. Cl. 363 (1958), cert. denied, 358 U.S. 906 (1958).

Where Reclamation officials sued were acting under both provisions of this section and contract provisions to preserve first right in water to lands under reclamation project, their acts were not so clearly ultra vires as to permit granting of injunction against them individually, and suit to establish plaintiffs' rights to water and for appropriate injunctive relief was, in essence, one against the United States, subject to dismissal for failure to make the United States a party thereto. Hudspeth County Conservation and Reclamation Dist. No. 1 v. Robbins, 213 F. 2d 425 (5th Cir. 1954), cert. denied 348 U.S. 833 (1955).

Where the United States and an irrigation district's predecessor entered into a contract providing that the United States would impound and store and release into

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the North Platte River and furnish from other sources for use of the predecessor an amount of water which would, with all the water the predecessor might be entitled to by reason of any appropriations and all water to which lands of the district were entitled, aggregate a certain scheduled flow, and that delivery of water provided for in the contract would be accepted as in full satisfaction of all the predecessor's rights to water of the North Platte River, but where express assignment of the predecessor's appropriative rights was omitted from the contract, the contract did not transfer to the United States the predecessor's appropriative rights. United States v. Tilley, 124 F. 2d 850 (8th Cir. 1941), cert. denied, 316 U.S. 691 (1942).

A contract between the United States and an irrigation company by which the latter turned over its canal to become part of a larger government project, which was to include storage reservoirs for the flood waters of the river, but "reserving" to its stockholders and contract holders a designated quantity of water which the company claimed the right to appropriate from the river, and which the government agreed to carry and distribute, "provided that delivery shall be made exclusively from the unregulated flow of the Boise river and shall be limited by the amount thereof," required the government to deliver thereunder only so much water as the company was actually entitled to take from the river under its appropriation, though, as later to be determined in a then pending suit, the quantity might be less than that named in the contract. New York Canal Co. v. United States, 277 Fed. 444 (D. Idaho 1913).

In view of the Reclamation Act, the Warren Act, and the legislation of Wyoming and Nebraska, an appropriation of water by the Reclamation Service for the irrigation of lands in Nebraska is valid, though the source of the supply is in Wyoming. Ramshorn Ditch Co. v. United States, 269 Fed. 80 (8th Cir. 1920), affirming 254 Fed. 842 (D. Neb. 1918).

3. Seepage

The Bureau of Reclamation under its appropriations of water of the Rio Grande River for the Rio Grande Irrigation Project, had control and right to prescribe use of seepage waters from lands within the project, as well as the original use of the waters. Bean v. United States, 163 F. Supp. 838, 143 Ct. Cl. 363 (1958), cert. denied 358 U.S. 906 (1958).

Under the Warren Act a contract between the United States and a land company for

Section 16 of the Act of August 13, 1914 (38 Stat. 686) does not prohibit the execution by the United States of a contract under section 2 of the Warren Act for the advance by the United States of $200,000 to permit the contractor with the United States, the North Side Canal Co., to obtain carriage capacity in the main canal of the gravity extension unit, or Gooding division of the Minidoka project, the construction of which canal for the joint benefit of the United States and the company was under contemplation. Solicitor's Opinion, April 17, 1928.

A contract between the United States and an irrigation company by which the latter turned over its canal to become part of a larger government project, which was to include storage reservoirs for the flood waters of the river, but "reserving" to its stockholders and contract holders a designated quantity of water which the company claimed the right to appropriate from the river, and which the government agreed to carry and distribute, "provided that delivery *** shall be made exclusively from the unregulated flow of the Boise river and shall be limited by the amount thereof," required the government to deliver thereunder only so much water as the company was actually entitled to take from the river under its appropriation, though, as later to be determined in a then pending suit, the quantity might be less than that named in the contract. New York Canal Co. v. United States, 277 Fed. 444 (D. Idaho 1913).

2. Drainage systems

A proposed contract of an irrigation district with the United States for construction by the government of a drainage system for the district was valid. McLean v. Truckee-Carson Irr. Dist., 245 Pac. 285, 49 Nev. 278 (1926).

The Secretary of the Interior is authorized by the Reclamation Act of 1902 alone, 267-067-72—vol. I—14

and certainly by the Warren Act of 1911, and section 7 of the Reclamation Extension Act of 1914, to enter into a contract with an irrigation district to furnish water and to join in the construction of a drainage system. Nampa & Meridian Irr. Dist. v. Petrie, 28 Idaho 227, 153 Pac. 425, 428 (1915).

3. Power development

The Secretary of the Interior is authorized under the Warren Act to contract with an irrigation district for the use of the falling water from the canal drop of a Federal reclamation project to generate power for pumping water diverted by the district from the Federal project under a Warren Act contract. Solicitor Margold Opinion, M-28725 (October 6, 1936), in re use of power site at C drop, Klamath_project.

The limitations in the Power Leasing Act of April 16, 1906, do not apply to the lease of a power privilege to a Warren Act contractor for the purpose of generating power for irrigation pumping. Solicitor Margold Opinion, M-28725 (October 6, 1936), in re use of power site at C drop, Klamath project.

Where a canal drop is not developed for power purposes as a part of a Federal reclamation project, the water users do not acquire a property interest in the energy of the falling water either as an incident of their right to the use of project water or as an incident of their obligation to repay the costs of the irrigation works which made the power drop possible; and therefore the United States may make development of the site available to a Warren Act contractor without the concurrence of the water users or the irrigation district which executed the repayment contract. Solicitor Margold Opinion, M-28725 (October 6, 1936), in re use of power site at C drop, Klamath project.

4. Operation and maintenance

Where a State irrigation district had purchased from the Reclamation Service a water right which was not yet paid for, and had contracted to carry through its canals water for the reclamation project, and there was grave danger that the irrigation district would be unable to operate its system, the Reclamation Service had such an interest in the district that it might

contract to take over the operation of the district under this section without acquiring absolute title to the project. New York Trust Co. v. Farmers' Irr. Dist., 280 Fed. 785 (8th Cir. 1922).

A contract made under the Reclamation Act, between the United States and an irrigation company, on behalf of its stockholders, for the furnishing of additional water to the lands of such stockholders from the government reservoir, was construed to be valid, and to authorize the charges made against the company for maintenance and operation. New York Canal Co., v. Bond, 265 F. 228 (9th Cir. 1920).

5. Excess lands

The provisions of reclamation law of general application dealing with land limitations include section 5 of the Act of June 17, 1902, sections 1 and 2 of the Warren Act of 1911, section 3 of the Act of August 9, 1912, section 12 of the Reclamation Extension Act of 1914, and section 46 of the Omnibus Adjustment Act of 1926. Solicitor Barry Opinion, 71 I.D. 496, 501 (1964), in re application of excess land laws to private lands in Imperial Irrigation District; Solicitor Harper Opinion, M-33902, at 2 (May 31, 1945), in re application of excess land laws to Coachella Valley lands.

Although section 2 of the Warren Act, standing alone, requires the application of acreage limitations where the United States cooperates with an entity in the construction of irrigation facilities even where no Federal subsidy is extended to the lands served by such non-Federal entity, the legislative history of the San Luis act indicates a Congressional intention that the acreage limitation should apply [only] where Federal investment is made and [only] because of the Federal investment. Solicitor Barry Opinion, 68 I.D. 412, 426 (1961), in re proposed agreement with State of California, covering construction of San Luis unit.

This section, prohibiting sale of irrigation water for tracts exceeding 160 acres, refers only to land in private ownership and only to watered land, and did not vitiate contract whereunder government sold to city, which acquired for entitlement purposes requisite areas of irrigable land, water to be used for municipal purposes. El Paso County Water Imp. Dist. No. 1 v. City of El Paso, 133 F. Supp. 894 (D. Tex. 1955), affirmed in part, reformed in part on other grounds 243 F. 2d 927, cert. denied 355 U.S. 820.

The restriction in the reclamation laws against furnishing project water to an acreage greater than 160 acres in a single owner

ship does not permit the furnishing of water alternately or in rotation to two or more 160-acre parcels of a larger single holding. Memorandum of Chief Counsel Fix to Commissioner, May 12, 1948.

The limitation intended by the reclamation law, as set forth in section 5 of the Reclamation Act of 1902 and as supported by the plain language of section 3 of the Act of August 9, 1912, relates to the area in private ownership to which water may be delivered, and not to the quantity of water. A private owner will not be supplied with water, whether a full or supplemental supply, for use upon a tract exceeding 160 acres. The language in section 2 of the Warren Act referring to "an amount sufficient to irrigate 160 acres" is not intended to change this rule. Solicitor Patterson Opinion, M-21709 (March 3, 1927), in re proposed contract concerning Gravity Extension Unit, Minidoka project.

The government might refuse to furnish water from a completed project under the Warren Act for more than 160 acres to any one landowner, but if it did furnish water which was accepted and received by the landowner, then the owner would be compelled to pay for the service, Klamath County v. Colonial Realty Co., 139 Ore. 311, 7 P. 2d 976 (1932).

Claim by realty company owning more than 160 acres in an irrigation district that the district could not legally supply water to such excess land under the Warren Act is not a valid defense to a foreclosure action for delinquent taxes assessed by the district against said lands during 1920 to 1925. Klamath County v. Colonial Realty Co., 139 Ore. 311, 7 P. 2d 976 (1932).

There can be no doubt that Congress has the power to restrict the right to the use of water furnished from government projects to 160 acres standing in the name of an individual; but the assessment of benefits to lands within the irrigation district is a different matter which Congress would not assume authority to control. Nampa and Meridian Irr. Dist. v. Petrie, 28 Idaho 227, 153 Pac. 425, 430 (1915).

6. Cancellation

Where an irrigation company, pursuant to contract with the United States under the Act of February 21, 1911, failed to secure adequate financial arrangements, the Secretary was justified to cancel the contract and to cancel the rights-of-way in connection with its irrigation project since the execution of the contract did not operate to grant a vested right-of-way. Verde River Irrigation & Power District v. Work, 24 F. 2d 886 (D.C. Cir. 1928), cert. denied 279 U.S. 854 (1929).