196 RECLAMATION EXTENSION ACT-SEC. 10 heretofore been issued, the construction charges for such land shall be increased five per centum each year until such application is made and an initial installment is paid. (38 Stat. 689; 43 U.S.C. § 464) 3 NOTES OF OPINIONS Date when increase attaches 2 1. Purpose of section and lands affected Section 9 of the Extension Act is intended to encourage the early filing of water-right applications for land which has not been subjected to the reclamation law. In the Extension Act, Congress kept clear the distinction between the two classes of land involved, one subjected to the reclamation law and one not subjected to that law. In the former case Congress fixed a definite rate when the first installment of the construction charge should become due and provided a penalty of 1 per cent a month for nonpayment. In the latter case, where the lands were not bound by any prior agreement, Congress provided the 5 per cent increase in section 9 to induce early application. From a careful survey of the entire law it appears evident that the application of section 9 is limited to lands in private ownership not subject to the reclamation law and to entries not subject to the reclamation law. Section 9, therefore, does not apply to any lands under section 2, which section deals exclusively with lands "subject to the terms and conditions of the reclamation law." Instructions, 47 L.D. 285 (1919); C.L. 862, December 19, 1919. 2. Date when increase attaches The date on which the increase in construction charges provided by this section first becomes effective is the day next following the expiration of one year after date of approval of the act, or one year after date of public notice, as the case may be. In the former instance the increases accrue on August 14. Reclamation decision, October 18, 1917, C.L. 704, supplementing C.L. 516. 3. Date when increase ceases In the case of lands for which waterright application is made under section 2 of this act the 5 per cent increase in construction charges provided for by this section ceases when the water-right application is made; but in cases where water-right application is made for lands under section 1, said increase does not cease until both the application is made and the initial installment is paid. Reclamation commission decision, March 17, 1917, C.L. 640. 4. Status of State lands School lands in private ownership as the result of purchase from the State are not subject to the penalty provided in section 9 of the Act of August 13, 1914. Benjamin F. Newkirk, 46 L.D. 400 (1918). Sec. 10. [Entries prior to June 25, 1910-Disposal of relinquished lands.]— The act of Congress approved February eighteenth, nineteen hundred and eleven, entitled "An act to amend section five of the act of Congress of June twenty-fifth, nineteen hundred and ten, entitled 'An act to authorize advances to the reclamation fund and for the issuance and disposal of certificates of indebtedness in reimbursement therefor, and for other purposes,' " be, and the same hereby is amended so as to read as follows: "Sec. 5. No entry shall be hereafter made and no entryman shall be permitted to go upon lands reserved for irrigation purposes until the Secretary of the Interior shall have established the unit of acreage per entry, and water is ready to be delivered for the land in such unit or some part thereof and such fact has been announced by the Secretary of the Interior: Provided, That where entries made prior to June twenty-fifth, nineteen hundred and ten, have been or may be relinquished, in whole or in part, the lands so relinquished shall be subject to settlement and entry under the reclamation law." (38 Stat. 689; 43 U.S.C. §§ 436, 437) RECLAMATION EXTENSION ACT-SEC. 12 EXPLANATORY NOTE 197 Editor's Note, Annotations. Annotations found under section 5 of the Act of June 25, of opinions for this section, if any, are 1910. Sec. 11. [Furnishing water before regular rates are fixed.]-Whenever water is available and it is impracticable to apportion operation and maintenance charges as provided in section five of this act, the Secretary of the Interior may, prior to giving public notice of the construction charge per acre upon land under any project, furnish water to any entryman or private landowner thereunder until such notice is given, making a reasonable charge therefor, and such charges shall be subject to the same penalties and to the provisions for cancellation and collection as herein provided for other operation and maintenance charges. (38 Stat. 689; 43 U.S.C. § 465) 1. Reduction of penalty NOTE OF OPINION Subsection H of the Fact Finders' Act, which reduces from one to one-half per cent per month the delinquency penalty on all charges coming due thereafter, also applies to rental charges fixed under section 11 of the Reclamation Extension Act of 1914. Instructions, 51 L.D. 218 (1925). Sec. 12. [Owners of private lands under new projects must dispose of excess area-Lands excluded upon refusal.]—Before any contract is let or work begun for the construction of any reclamation project hereafter adopted the Secretary of the Interior shall require the owners of private lands thereunder to agree to dispose of all lands in excess of the area which he shall deem sufficient for the support of a family upon the land in question, upon such terms and at not to exceed such price as the Secretary of the Interior may designate; and if any landowner shall refuse to agree to the requirements fixed by the Secretary of the Interior, his land shall not be included within the projects if adopted for construction. (38 Stat. 689; 43 U.S.C. § 418) EXPLANATORY NOTE Cross Reference, Valid Recordable Contracts. Section 46 of the Omnibus Adjustment Act of May 25, 1926, provides that no water shall be delivered to excess lands if the owners thereof shall refuse to execute valid recordable contracts for the sale of Excess land laws 1-3 Pre-existing holdings 2 1. Excess land laws-Generally such lands under terms and conditions satisfactory to the Secretary of the Interior and at prices not to exceed those set by the Secretary. The 1926 Act appears herein in chronological order. NOTES OF OPINIONS 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 (May 31, 1945), in re application of excess land laws to Coachella Valley. Section 46 of the 1926 Act and section 12 of the 1914 Act deal specifically with the breakup of pre-existing holdings, while the 1902 and the 1912 Acts are relevant to the issue of the effect of excess land limitations on the coalescence of holdings. Sec 198 RECLAMATION EXTENSION ACT-SEC. 13 tion 46 is an extension of the policy embodied in section 12. Solicitor Barry Opinion, 68 I.D. 372, 375, 376, 390, 404 (1961), in re proposed repayment contracts for Kings and Kern River projects. 2. Pre-existing holdings. The preconstruction requirement of section 12 of the Reclamation Extension Act of 1914 that owners of private lands agree to dispose of all lands in excess of the area deemed sufficient for the support of a family, was designed specifically to cope with the special problem of initially breaking up excess holdings and of preventing owners of excess lands from profiting by the existence Sec. 13. [Entries to be reduced to single farm units-Time for making proof-Cancellation of excess entries-Issue of patents-Assignments restricted.]—All entries under reclamation projects containing more than one farm unit shall be reduced in area and conformed to a single farm unit within two years after making proof of residence, improvement and cultivation, or within two years after the issuance of a farm-unit plat for the project, if the same issues subsequent to the making of such proof: Provided, That such proof is made within four years from the date as announced by the Secretary of the Interior that water is available for delivery for the land. Any entryman failing within the period herein provided to dispose of the excess of his entry above one farm unit, in the manner provided by law, and to conform his entry to a single farm unit shall render his entry subject to cancellation as to the excess above one farm unit: Provided, That upon compliance with the provisions of law such entryman shall be entitled to receive a patent for that part of his entry which conforms to one farm unit as established for the project: Provided further, That no person shall hold by assignment more than one farm unit prior to final payment of all charges for all the land held by him subject to the reclamation law, except operation and maintenance charges not then due. (38 Stat. 690; 43 U.S.C. §§ 435, 443) EXPLANATORY NOTE Codification. The last proviso is codified as section 443, title 43, U.S. Code. The rest 1. Conformation of entry of the section is codified as section 435. NOTES OF OPINIONS Farm-unit plats are a part of the public notice affecting same, and where such plats are approved by the Secretary of the Interior prior to date of the public notice the latter date controls, and entrymen who submitted proof on or prior thereto will have two years from the date of notice within which to conform their entries and dispose of excess lands under this section. Where proof is submitted after date of public notice the two years begin to run from the date of such proof, provided that same is submitted within four years from the date fixed by the Secretary when water will be available for Where an entryman of lands within a reclamation project fails, after notice, to conform his entry to an established farm unit the Secretary of the Interior has the power to conform the entry. Mangus Mickelson, 43 L. D. 210 (1914). Prior to the due establishment of farm units and the conformation of the particular entry to an approved unit, proof of reclamation of the land embraced within the rec RECLAMATION EXTENSION ACT-SEC. 16 lamation homestead entry under the national irrigation act of June 17, 1902, will not be accepted. Charles A. Galusha, 46 L. D. 417 (1918). In this case an original reclamation entry was made in 1903 on lands embraced in a second-form reclamation withdrawal, the entry was relinquished in 1905 and reinstated in 1915, but the announcement of water availability was not made until 1947. Meanwhile, in 1943 and 1944 the Secretary 199 of the Interior granted permission to the Federal Public Housing Authority to use part of the land included in the entry for a war housing project. Under these circumstances, the Secretary may exclude the housing project lands in establishing the remainder of the entry as a farm unit where the remaining lands are adequate to support a family. David C. Caylor, A-25416, 60 I.D. 333 (1949). Sec. 14. [Acceptance of extension of payments to be made within six months-Upon showing, may be made later.]-Any person whose land or entry has heretofore become subject to the reclamation law who desires to secure the benefits of the extension of the period of payments provided by this act shall, within six months after the issuance of the first public notice hereunder affecting his land or entry, notify the Secretary of the Interior in the manner to be prescribed by said Secretary, of his acceptance of all the terms and conditions of this act, and thereafter his lands or entry shall be subject to all of the provisions of this act: Provided, That upon sufficient showing the Secretary of the Interior may, in his discretion, permit notice of acceptance of all the terms and conditions of this act to be filed at any time after the time limit hereinbefore fixed for filing such acceptance shall have expired, conditioned, however, that where the applicant for such acceptance is in arrears on construction charges he shall at the time of acceptance pay such installments of the construction charge as he would have been required to pay had he accepted this act within the time limit hereinabove fixed plus the penalties that would have accrued had he so accepted, and such applicant shall thereafter be upon the same status that he would have been had he accepted the provisions of this act within the time limit hereinabove fixed, and thereafter the lands or entry of any such persons so filing such notice of acceptance shall be subject to all the provisions of this act. (38 Stat. 690; Proviso added by Act of July 26, 1916, 39 Stat. 390; 43 U.S.C. § 475) EXPLANATORY NOTE 1916 Amendment. The Act of July 26, 1916, 39 Stat. 390, amended section 14 by adding to it the proviso that appears in the section. The 1916 Act appears herein in chronological order. Sec. 15. [General authority.]-The Secretary of the Interior is hereby authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this act into full force and effect. (38 Stat. 690; 43 U.S.C. § 373) 1. Suspension of public notices NOTE OF OPINION The Secretary of the Interior has no general supervisory authority or authority under section 441, Revised Statutes, under section 10 of the Act of June 17, 1902, or under section 15 of the Act of August 13, 1914, to suspend public notices issued under the reclamation law. In re Shoshone Irrigation Project, etc., 50 L.D. 223 (1923). Sec. 16. [Expenditures after July 1, 1915, limited to specific appropriations— To be paid out of reclamation fund.]—From and after July first, nineteen 200 RECLAMATION EXTENSION ACT-SEC. 16 hundred and fifteen, expenditures shall not be made for carrying out the purposes of the reclamation law except out of appropriations made annually by Congress therefor, and the Secretary of the Interior shall, for the fiscal year nineteen hundred and sixteen, and annually thereafter, in the regular Book of Estimates, submit to Congress estimates of the amount of money necessary to be expended for carrying out any or all of the purposes authorized by the reclamation law, including the extension and completion of existing projects and units thereof and the construction of new projects. The annual appropriations made hereunder by Congress for such purposes shall be paid out of the reclamation fund provided for by the reclamation law. (38 Stat. 690; 43 U.S.C. 8414) Practicability of project 2 Use of reclamation fund 1 1. Use of reclamation fund NOTES OF OPINIONS Moneys in the reclamation fund arising from operation and maintenance charges, regardless of date of payment or collection thereof, can be made available for expenditure only in accordance with provisions of section 16 of the Act of August 13, 1914. 27 Comp. Dec. 849 (1921). 2. Practicability of project Section 16 of the Act of August 13, 1914, did not relieve the Secretary of the Interior of the duty imposed by section 2 of the Act of June 17, 1902, to report at each session of Congress "all facts relative to the practicability of each irrigation project," nor did it relieve him of the duty imposed by section 4 of the Act of June 17, 1902, to determine the practicability of irrigation projects before the letting of contracts. 34 Op. Atty. Gen. 545 (1925). EXPLANATORY NOTE Legislative History. S. 4628, Public Law 170 in the 63rd Congress. S. Rept. No. 312. H.R. Rept. No. 505. H.R. Rept. No. 1076 (conference report). |