FACT FINDERS' ACT-SUBSEC. I 321 profits from such sources may be used by the water users to be credited annually, first, on account of project construction charge, second, on account of project operation and maintenance charge, and third, as the water users may direct. No distribution to individual water users shall be made out of any such profits before all obligations to the Government shall have been fully paid. (43 Stat. 703; 43 U.S.C. § 501) EXPLANATORY NOTE Cross References, Special Statutes. A number of special provisions relating to the application of revenues from individual Oil and gas revenues Power revenues Generally 2 projects are contained in appropriation acts and other statutes. References thereto are found in the index. NOTES OF OPINIONS Hayden-O'Mahoney amendment 3 1. Application of credits The credit of "total accumulated net profits" at the time control is transferred will shorten the repayment period but not reduce the amount of annual installments, whereas the net profits thereafter arising will be credited annually first to the construction installment coming due and continuing with subsequent construction installments as far as such credit will go. Interpretation, 51 L.D. 207, 212-13 (1925). Where the administrative officers of the Government fail to apply the net profits derived from the operation of a project power plant annually to the operation and maintenance costs of the project taken over by an irrigation district as required by subsection I of section 4 of the act of December 5, 1924, and such profits together with the amount paid by the irrigation district would have liquidated the debt of the district, no penalty can be charged against the district. First Assistant Secretary Dixon Opinion, 53 I.D. 257 (1931), in re North Platte project. 2. Power revenues-Generally The availability of power revenues to aid irrigation has, in one form or another, been a part of general reclamation law almost since its beginning. This is evident from section 5 of the Act of April 16, 1906, 34 Stat. 116, 117, 43 U.S.C. § 522; the Act of February 24, 1911, 36 Stat. 930, 43 U.S.C. § 522; and subsection I, section 4, of the Act of December 5, 1924, 43 Stat. 703, 43 U.S.C. § 501. This general trend has been reinforced by the Hayden-O'Mahoney amendment to the Interior Department Appropriation Act, 1939, the Act of May 9, 1938, 52 Stat. 322, 43 U.S.C. § 392a, and a provision in the Interior Department Appropriation Act, 1947, Act of July 1, 1946, 60 Stat. 366, as well as section 9 of the Reclamation Project Act of 1939, Act of August 4, 1939, 53 Stat. 1193, 43 U.S.C. § 485h. Memorandum of Chief Counsel Fisher, September 12, 1952, in re procedure on use of surplus power revenues for assistance in financing irrigation distribution systems. 3. Hayden-O'Mahoney amendment The legislative history of the HaydenO'Mahoney amendment indicates that the type of contract which was intended to be excepted from its application was that authorized to be entered into under subsection I of section 4 of the Act of December 5, 1924, that is, one where the power development has been financed by the Government and the water users have obligated themselves in fact to repay all of the costs. Solicitor Harper Opinion, M-33504 (September 26, 1944), in re disposition of net power revenues from the Grand Valley project. After repayment of construction charges of the Grand Valley Project, and operation and maintenance costs during the repayment period, the net power revenues will be required, under the Hayden-O'Mahoney Amendment, to be covered into the General Treasury as miscellaneous receipts. Solicitor's Opinion, M-33504 (September 26, 1944). 4. —Minidoka project By order of March 14, 1927, the Secretary of the Interior held, pursuant to this Act and the Act of May 10, 1926, 44 Stat. 480, that the profits from the sale of electric energy should be credited to the two districts of the Minidoka project in the same proportion as the costs of the power plant were charged; that is, 95.6 percent to the Burley irrigation district, and 4.4 percent 322 FACT FINDERS' ACT-SUBSEC. I to the Minidoka irrigation district. In 1929, a committee appointed by the Secretary recommended that the proceeds from the sale of power be divided, 72.7 percent to the Burley irrigation district and 27.3 percent to the Minidoka irrigation district. The Burley irrigation district filed a motion for preliminary injunction to restrain the Secretary from reconsideration of the matter of ratio of ownership and participation by the two districts in the power profits previously adopted. The court held that the matter was finally determined by the Secretary of the Interior in his decision of March 14, 1927, above mentioned, and that he was without power to take the action recommended by the committee appointed in 1929. Wilbur v. Burley Irrigation District, 58 F. 2d 871, 61 App. D.C. 145 (1932). The Government's power plant at the Minidoka Dam on the Minidoka project in eastern Idaho, had only a small supply of energy available for commercial sales during the irrigation season on account of the power demand for irrigation pumping on the project. The United States made a contract with the Idaho Power Co. by which the Government delivered to the company a portion of the output of the Government's Black Canyon power plant on the Boise project in the Western part of the State, in return for which the company supplemented the energy supply from the Minidoka plant so as to make firm power available for commercial sales throughout the year. The Secretary, also, to conserve for irrigation use the winter flow of the Snake River which theretofore had produced power at the Minidoka power plant, stopped the winter operation of the plant in order to store the water in American Falls reservoir above. The winter commercial power needs on the project were supplied under the same arrangement with the Idaho Power Co. The Secretary, for the year 1935, allocated $50.000 to the Black Canyon plant from revenues from commercial sales on the Minidoka project. The Burley district which was entitled to share in the profits of the Minidoka plant (Wilbur v. Burley Irrigation District, 58 F. 2d 871, 1932) brought a suit to enjoin the Secretary from making such a distribution, basing its claim on the contention that it was "the owner" of 95.6 percent of the Minidoka power plant. The court dismissed the suit holding, after distinguishing between the plaintiff's ownership of the right to a percentage of the profits and the "ownership of the plant" contended for by the plaintiff "In the face of these findings, there can be no question that the Secre tary's action in placing the plan into effect was essential (1) to fulfill plaintiff's requirements for power for irrigation and (2) to preserve the commercial business, without which there would have been no profits to share. In these circumstances he had lawful authority to stop the flow of winter water and cease generating winter power at the plant." Burley Irrigation District v. Ickes, 116 F. 2d 529, 73 App. D.C. 23 (1940) cert. denied, 312 U.S. 687 (1941). 5. -North Platte project The net power revenues creditable to each of the four districts of the North Platte project should be credited each year on the annual installment of the construction charge of each district, without regard to the classification of the land, and the districts should agree to distribute the credit equally per acre to all of the irrigable lands of the districts, including land in class 5. Such distribution should be subject to the condition of the Act of March 3, 1925, 43 Stat. 1167, and to the restriction set forth in the last sentence of subsection I of the Act of December 5, 1924, 43 Stat. 703. Solicitor's Opinion, M-25908 (August 27, 1932). 6. -Shoshone project The Act of March 4, 1929, prevents the Department from applying any of the net power revenues of the Shoshone power plant to a reduction of the annual charges due from the Shoshone Irrigation District to the United States in accordance with the provisions of subsection I of the Fact Finders' Act of December 5, 1924. Solicitor Finney Opinion, 53 I.D. 427 (1931). The Act of March 4, 1929, relating to the disposition of Shoshone power revenues, is clearly within the constitutional power of Congress to enact. If the Act impairs any contract rights of the plaintiff under a prior contract, its remedy for recovery is in recourse to the Court of Claims. An action for a writ of mandamus to compel the Secretary of the Interior to determine and credit to the plaintiff annually a portion of the power revenues will not lie, both because this is in the nature of a suit for specific performance of a contract to which the United States has not given its consent, and because the matter is so completely within the discretion of the Secretary as to forbid interference by writ of mandamus. United States ex rel. Shoshone Irr. Dist. v. Ickes, 70 F.2d 771, 63 App. D.C. 1671934), cert. denied 293 U.S. 5711934). 11. Oil and gas revenues The proceeds from oil and gas leases issued by the Strawberry Water Users' Association en former Indian reservation lands, the beneficial ownership of which was trans FACT FINDERS' ACT-SUBSEC. K ferred to the project landowners by the Act of April 4, 1910, even though legal title remains in the United States, should be applied in conformity with subsection I of the Fact Finders' Act of 1924. Solicitor White Opinion, M-36051 (December 7, 1950). 16. Lease revenues The First Assistant Secretary, in modifying departmental instructions of September 14, 1936, with reference to leases of land under the Taylor Grazing Act, held that the Secretary's authority to lease lands withdrawn in connection with a reclama 323 tion project, was recognized by the Congress in subsection I of the Act of December 5, 1924, and that all leases of land withdrawn for reclamation purposes should be made under the authority of subsection I; that all such leases should be made in the form approved June 18, 1934, and that whatever moneys may yet be received from leases of withdrawn reclamation lands made in accordance with prior instructions of September 14, 1936, should be disposed of in accordance with subsection I. Instructions, M-29482 (October 8, 1937). Subsec. J. [Moneys from sale or rental of water shall be credited to project or division of project to which construction cost has been charged.]—All moneys or profits as determined by the Secretary heretofore or hereafter derived from the sale or rental of surplus water under the Warren Act of February 21, 1911 (Thirty-sixth Statutes, page 925), or from the connection of a new project with an existing project shall be credited to the project or division of the project to which the construction cost has been charged. (43 Stat. 703; 43 U.S.C. § 526) EXPLANATORY NOTE Reference in the Text. The Warren Act page 925), referred to in the text, appears of February 21, 1911 (Thirty-sixth Statutes, herein in chronological order. NOTES OF OPINIONS The profits of the class described in subsection J may be credited by the Secretary in his discretion to construction charges, or to operation and maintenance charges to the extent they exist. Interpretation, 51 L.D. 207, 213-14 (1925). 2. Secretary's discretion Certain profits arose on the Minidoka project from the sale of Jackson Lake water under the Warren Act. The Secretary of the Interior, after full consideration and a hearing accorded the parties, allocated the profits among the different divisions of the project. The Minidoka Irrigation District, representing one division of the project, being dissatisfied with the allocation, brought suit in the courts of the District of Columbia to secure a mandatory injunction compelling the Secretary to make an allocation in accordance with the contentions of the plaintiff. The trial court denied the Government's motion to dismiss, and the Government appealed to the Court of Appeals of the district, where the Secretary's allocation was upheld, and the lower court ordered to dismiss the bill. It was held that the Secretary was acting in a quasijudicial capacity, that his decision was not arbitrary or capricious, and that the plaintiff was seeking a judgment in mandamus directing the Secretary to act contrary to the facts and the law of the case as found by him, and that such an appeal will not be entertained by the courts. Wilbur v. Minidoka Irr. Dist, 50 F. 2d 495, 60 App. D.C. 205 (1931), cert. denied, 284 U.S. 634 (1931). 3. Power privileges Proceeds paid by a Warren Act contractor for use of a power site at a canal drop on a Federal reclamation project are required to be credited to the project by subsection J, section 4 of the Act of December 5, 1924. Solicitor Margold Opinion M-28725 (October 6, 1936), in re use of power site at C drop, Klamath project. Subsec. K. [Surveys authorized where settlers appear unable to pay construction costs-Expense of such surveys.]-On each existing project where, in the opinion of the Secretary, it appears that on account of lack of fertility in the 324 FACT FINDERS' ACT-SUBSEC. L soil, an inadequate water supply, or other physical causes, settlers are unable to pay construction costs, or whenever it appears that the cost of any reclamation project by reason of error or mistake or for any cause has been apportioned or charged upon a smaller area of land than the total area of land under said project, the Secretary is authorized to undertake a comprehensive and detailed survey to ascertain all pertinent facts, and report in each case the result of such survey to the Congress, with his recommendations: Provided, That the cost and expense of each such survey shall be charged to the appropriation for the project on account of which the same is made, but shall not be charged as a part of the construction or operation and maintenance cost payable by the water users under the project. (43 Stat. 703; 43 U.S.C. § 466) EXPLANATORY NOTE Cross Reference, Omnibus Adjustment Act. The Act of May 25, 1926, 44 Stat. 636, the Omnibus Adjustment Act, was enacted as a result of the survey and report made pursuant to the authority contained in sub section "K". See H.R. Doc. No. 201. Sixtyninth Congress, first session. The Omnibus Adjustment Act appears herein in chronological order. Subsec. L. [On adjustments all unpaid charges shall be added to obligation of water user.]-Repealed. EXPLANATORY Note Provision Repealed. Section 47 of the Act of May 25, 1926, the Omnibus Adjustment Act, repealed subsections E, F and L of this Act, except as otherwise provided in the Adjustment Act. Before repeal, subsection I read as follows: "In any adjustment of water charges as provided in this section all due and unpaid charges to the United 1. Application States, both on account of construction and on account of operation and maintenance, including interest and penalties, shall be added in each case to the total obligation of the water user, and the new total thus established shall then be the construction charge against the land in question." NOTES OF OPINIONS In this subsection the words, "in any adjustment of water charges," are understood to indicate the time which will determine what charges are due and unpaid, and what charges will thereafter be added in each case to the total obligation of the water user. It is believed that the adjustment of water charges occurs on that date when the adjustment contract is made, and that the charges due and unpaid on that date are the charges added in each case to the total obligation. So far as the construction charges are concerned, the provisions of subsection I. and the provisions of the last sentence of subsection F may overlap if the adjustment contract is made at a date later than December 1, 1925. Interpretation, 51 L.D. 207, 214 (1925). The qualification in subsection G that, where two-thirds of a project or division is covered by water-right contracts, a water users' association or irrigation district must take over operation and maintenance of the project as a condition precedent to receiving the benefits of "this section", applies only to the benefits provided under subsections F and L. Interpretation, 51 L.D. 215 (1925). Subsec. M. [Exchange of farm unit-Construction payments creditedPreference right of ex-service man.]—Repealed. EXPLANATORY NOTE Provision Repealed. The Act of Aueust 13, 1953, 6 Stat 566, the Farn Unit Exchange Acc, repealed subsection M of section 4 which read as follows; “Pat every entryman or assignee on a project farm unit not yet patented which unit shall be found by the Secretary to be insufficient to support a fam and pay water charges shall have FACT FINDERS' ACT-SUBSEC. O the right upon application to exchange his entry for another farm unit of unentered public land on the same or another project located in the same State, in which event all installments of construction charges theretofore paid on account of the relinquished farm unit shall be credited on account of the new farm unit taken in exchange: Provided, That where two entry 1. Exchanges 325 men apply for the same farm unit under the exchange provision of this subsection, only one of whom is an ex-service man, as defined by the joint resolution of January 21, 1922 (Forty-second Statutes, page 358), the exservice man shall have a preference in making such exchange." The 1953 Act appears herein in chronological order. NOTES OF OPINIONS All exchanges made under subsection M must be within the same State. Solicitor's Opinion, M-21655 (February 25, 1927). The words "not yet patented" used in subsection M, have reference not to the date of the approval of the act but to the date when application for exchange of entry is made. Norman E. Thackeray, 52 L. D. 60 (1927). In decision of March 22, 1934, the First Assistant Secretary of the Interior refused to approve an exchange of patented lands in the Frannie division for an unpatented unit in the Willwood division, Shoshone project. Lands within a Federal irrigation project will not be allowed to remain subject to entry where they are found insufficient to support a family or, after relinquishment by a former entryman, while the latter's appli cation for an exchange of entry under subsec. M of the act of December 5, 1924, is being considered. Thomas S. Cady, 52 L. D. 222 (1927). Where an applicant for exchange of entry of lands within a Federal irrigation project has filed relinquishment prior to the determination of his application, another will not be permitted to enter the relinquished lands until his qualifications have been established by an examining board, and until he has filed a written statement that he has knowledge that the lands are classed as unproductive and insufficient to support a family after payment of water charges, a waiver of right to relief under the act of December 5, 1924, and consent to pay construction charges should the lands be subsequently embraced within_a_productive class. Thomas S. Cady, 52 L. D. 222 (1927). Subsec. N. [Advance payment of operation and maintenance charges.]—All contracts providing for new projects and new divisions of projects shall require that all operation and maintenance charges shall be payable in advance. In each case where the care, operation, and maintenance of a project or division of a project are transferred to the water users the contract shall require the payment of operation and maintenance charges in advance. That whenever an adjustment of water charges is made under this section the adjustment contract shall provide that thereafter all operation and maintenance charges shall be payable in advance. (43 Stat. 704; 43 U.S.C.§ 493) Subsec. O. [Expense of Washington office and of general investigations not chargeable to water users.]-The cost and expense after June 30, 1945, of the office of the Commissioner in the District of Columbia and, except for such cost and expense as are incurred on behalf of specific projects, of general investigations and of nonproject offices outside the District of Columbia, shall be charged to the reclamation fund and shall not be charged as a part of the reimbursable construction or operation and maintenance costs. (43 Stat. 704; Act of April 19, 1945, 59 Stat. 54; 43 U.S.C. § 377) EXPLANATORY NOTE 1945 Amendment. The Act of April 19, 1945, 59 Stat. 54, amended subsection 0 to read as it appears above. Before amendment, the subsection read as follows: "That the cost and expense after June 30, 1925, of the main office at Washington, District of Columbia, of the Bureau of Reclamation in the Department of the Interior, and the |