416 BOULDER CANYON PROJECT ACT-SEC. 1 over lands acquired by the United States for public buildings. Six Companies, Inc. v. DeVinney, County Assessor, 2 F. Supp. 693 (D. Nev. 1933). The distribution system for Coachella Valley is not an "appurtenant structure" to the main canal within the meaning of section 1 of the Boulder Canyon Project Act. Solicitor White Opinion, M-34900 (March 27, 1947) in re flood protection work in Coachella Valley. 11. State laws Where the government has, as here, exercised its right to regulate and develop the river and has undertaken a comprehensive project for improvements of the river and for the orderly and beneficial distribution of water, there is no room for inconsistent state law. Arizona v. California, 373 U.S. 546, 587 (1963). The privilege of the States through which the Colorado River flows and their inhabitants to appropriate and use the water is subject to the paramount power of the United States to control it for the purpose of improving navigation. Arizona v. California et al., 298 U.S. 558, 569 (1936), rehearing denied, 299 U.S. 618 (1936). The Secretary of the Interior is under no obligation to submit the plans and specifications for the dam and reservoir to the State Engineer as required by Arizona law because the United States may perform its functions without conforming to the police regulations of a State. Arizona v. California, 283 U.S. 423, 451 (1931). 12. Judicial review All of the powers granted to the Secretary of the Interior by this Act are subject to judicial review. Arizona v. California, 373 U.S. 546, 584 (1963). 13. United States as party The action of the Secretary of the Interior in reducing by ten per cent the amount of Colorado River water which irrigation and drainage district might order during the balance of 1964 was the action of the sovereign, and, the sovereign not having consented thereto, could not be enjoined, or otherwise made the subject of any court proceedings. Yuma Mesa Irr. and Drainage Dist. v. Udall, 253 F. Supp. 909 (D.D.C. 1965). The United States is an indispensable party to an action by Arizona against California and the five other States of the Colorado River Basin praying for an equitable division of the unappropriated water of the river. Arizona v. California, et al., 298 U.S. 558 (1936), rehearing denied, 299 U.S. 618 (1936). 14. Colorado River Compact The declarations in sections 1, 8(a), 13 (b), and 13(c) of the Boulder Canyon Project Act that the Secretary of the Interior and the United States shall be subject to and controlled by the Colorado River Compact were made only to show that the Act and its provisions were in no way to upset, alter, or affect the Compact's congressionally approved division of water between the Upper and the Lower Basins. They were not intended to make the compact and its provisions control or affect the Act's allocation among and distribution of water within the States of the Lower Basin. Arizona v. California, 373 U.S. 546, 567 (1963). In construing the Boulder Canyon Project Act, the Court would look to the Colorado River Compact for the limited purposes of interpreting compact terms specifically incorporated in the Act-such as the reference to satisfaction of "present perfected rights" in section 6, and the definition of "domestic" in section 12-and of resolving disputes between the Upper and Lower Basins. Arizona v. California, 373 U.S. 546, 566 (1963). 15. Costs, allocation and reimbursement of For discussion of numerous legal problems involved in allocation and reimbursement of costs of All-American Canal and related works see Memoranda of Chief Counsel Fisher of April 1, 1953, and October 23, 1952. Investigation costs incurred by the United States under contracts of 1918, 1920, 1929 and 1933 in connection with the All-American Canal are reimbursable by the Imperial Irrigation District. Nothing in the Kinkaid Act of May 18, 1920, or its legislative history implies that the expenses under the 1920 contract paid by the United States were to be a gift to the District, and the fact that the District contributed two-thirds the cost of the study does not imply that the onethird paid by the United States was to be nonreimbursable. Nor does the fact that study funds advanced by the District under the 1929 and 1933 contracts were later refunded imply that U.S. costs to the amount of the refunds were to be nonreimbursable. Memorandum of Chief Counsel Fisher, November 18, 1953. 16. Leases and permits Both the National Park Service and the Bureau of Reclamation, in administering their respective areas withdrawn under the first form in connection with the Boulder Canyon project, may grant leases for land and permits to engage in business activities to private individuals without advertising for proposals or securing competitive bids. BOULDER CANYON PROJECT ACT-SEC. 2 Solicitor Margold Opinion, M-28694 (October 13, 1936). 17. Excess lands The Coachella Valley County Water District lands are subject to the excess land provisions of the Federal reclamation law. Solicitor Harper Opinion, M-33902 (May 31, 1945). 417 assumed to have vested Colorado River water rights, are subject to the excess land laws. Solicitor Barry Opinion, 71 I.D. 496 (1964), reversing Letter of Secretary Wilbur, February 24, 1923. Administrative practice in failing to apply excess land laws to private lands in Imperial Irrigation District, no matter of how long standing, is not controlling where it is clearly erroneous. Solicitor Barry Opinion, 71 I.D. 496, 513–17 (1964). Privately-owned lands in the Imperial Valley Irrigation District, even those Sec. 2. [(a) Colorado River Dam fund established. (b) Secretary of Treasury to advance amounts necessary up to $165,000,000. $25,000,000 to be allocated to flood control, to be repaid. (c) No expenditures for operation and maintenance except from appropriations. (d) Secretary of Treasury to charge fund for payment of interest. (e) Secretary of Interior to certify to Treasury amount of money in fund in excess of that necessary for construction, etc.]—(a) There is hereby established a special fund, to be known as the "Colorado River Dam fund" (hereinafter referred to as the "fund"), and to be available, as hereafter provided, only for carrying out the provisions of this act. All revenues received in carrying out the provisions of this act shall be paid into and expenditures shall be made out of the fund, under the direction of the Secretary of the Interior. (b) The Secretary of the Treasury is authorized to advance to the fund from time to time and within the appropriations therefor, such amounts as the Secretary of the Interior deems necessary for carrying out the provisions of this act, except that the aggregate amount of such advances shall not exceed the sum of $165,000,000. Of this amount the sum of $25,000,000 shall be allocated to flood control and shall be repaid to the United States out of 622 per centum of revenues, if any, in excess of the amount necessary to meet periodical payments during the period of amortization, as provided in section 4 of this act. If said sum of $25,000,000 is not repaid in full during the period of amortization, then 622 per centum of all net revenues shall be applied to payment of the remainder. Interest at the rate of 4 per centum per annum accruing during the year upon the amounts so advanced and remaining unpaid shall be paid annually out of the fund, except as herein otherwise provided. (c) Moneys in the fund advanced under subdivision (b) shall be available only for expenditures for construction and the payment of interest, during construction, upon the amounts so advanced. No expenditures out of the fund shall be made for operation and maintenance except from appropriations therefor. (d) The Secretary of the Treasury shall charge the fund as of June 30 in each year with such amount as may be necessary for the payment of interest on advances made under subdivision (b) at the rate of 4 per centum per annum accrued during the year upon the amounts so advanced and remaining unpaid, except that if the fund is insufficient to meet the payment of interest the Secretary of the Treasury may, in his discretion, defer any part of such payment, and the amount so deferred shall bear interest at the rate of 4 per centum per annum until paid. (e) The Secretary of the Interior shall certify to the Secretary of the Treasury, at the close of each fiscal year, the amount of money in the fund in excess of the 418 BOULDER CANYON PROJECT ACT-SEC. 2 amount necessary for construction, operation and maintenance, and payment of interest. Upon receipt of each such certificate the Secretary of the Treasury is authorized and directed to charge the fund with the amount so certified as repayment of the advances made under subdivision (b), which amount shall be covered into the Treasury to the credit of miscellaneous receipts. (45 Stat. 1057; 43 U.S.C. § 617a) EXPLANATORY NOTE shall enter into any computation thereunder, such interest shall be computed at the rate of 3 per centum per annum, compounded annually". The Act appears herein in chronological order. NOTES OF OPINIONS Interest, at the rate of 4 percent, prescribed by section 2(d), could not be remitted on funds advanced to the Colorado River Dam fund, placed to the credit of the Interior Department but later returned to the Treasury unexpended. Dec. Comp. Gen., A-46044 (February 28, 1933). 2. Flood control The language of section 2(b) shows clearly that Congress did not regard the $25,000,000 thereby allocated to flood control as falling within the amortization plan embodied in section 4(b). The $25,000,000 allocated to flood control must be regarded as falling outside of the words "all amounts advanced to the fund under subdivision (b) of section 2 for such works" in section 4(b). It is my opinion that the Secretary of the Interior is not required, in fixing the sale rates for power to be generated at Boulder Dam, to make provision for the amortization within the 50 years of the $25,000,000 allocated by the act to flood control. 36 Op. Atty. Gen. 121 (1929). It does not seem reasonable to suppose that Congress intended to make the payment of interest on the $25,000,000 allocated to flood control an absolute charge during the 50 years when it left the payment of the principal to the chance that there might be excess earnings during that period. Interest should be ultimately paid on the $25,000,000 from the same source as is provided for the payment of the principal, to wit: out of 621⁄2 per cent of the excess earnings during the 50-year period and out of 622 per cent of the net earn ings thereafter. 36 Op. Atty. Gen. 121 (1929). 3. School purposes On September 29, 1931, the Comptroller General held that there is no authority to use the Colorado River Dam fund for the construction of school buildings, transportation of pupils, or construction of swimming pools. Upon request for reconsideration the Comptroller General, under date of October 17, 1931, stated that in view of the further representations made to the effect that the construction of the Boulder Dam was being delayed by lack of school facilities and that "the erection of school buildings is necessary to carry out the purposes of the project act", no objection would be interposed to the use of the Colorado River Dam fund for the construction of temporary buildings in which schools may be conducted during the current school year, provided the contractor will bear the expense of maintaining and operating the schools unless and until otherwise specifically provided for by law. Dec. Comp. Gen., A-38343 (October 17, 1931). 4. Economy Act deductions The amount of Economy Act deductions from the total compensation of employees who are paid out of the Colorado River Dam fund is required to be advanced from appropriated funds as a part of the cost of construction in the same manner as the remainder of the compensation of the employees and is subject to 4 percent interest charges provided by section 2(b) of the Act of December 21, 1928 (45 Stat. 1057), on all advances from the general fund to the special fund. The impounding of Economy Act deductions from the total compensation of employees who are paid out of the Colorado River Dam fund should be directly from such special fund to the impounded BOULDER CANYON PROJECT ACT-SEC. 4 fund Dec. Comp. Gen., A-42691 (February 13, 1933). Economy deductions under sections 110 and 203 of the Act of June 30, 1932, and under section 4(d) of the Act of March 20, 1933, are a part of the construction cost of the Boulder Canyon project, and the impounding and deposit of same to the sur 419 plus fund of the Treasury do not constitute a return or repayment of these amounts within the purview of the Boulder Canyon Project Act of December 21, 1928. Interest on said amounts must continue until repayment has been made in accordance with the terms of said Act. Dec. Comp. Gen., A56169 (July 2, 1934). Sec. 3. [Appropriation not exceeding $165,000,000 authorized.]-There is hereby authorized to be appropriated from time to time, out of any money in the Treasury not otherwise appropriated, such sums of money as may be necessary to carry out the purposes of this act, not exceeding in the aggregate $165,000,000. (45 Stat. 1058; 43 U.S.C. § 617b) 1. Availability of appropriations NOTES OF OPINIONS Section 320 of the Economy Act of June 30, 1932, relative to restriction on construction and rental of buildings is applicable to section 3 of the Boulder Canyon Project Act. Dec. Comp. Gen., A-42691 (July 25, 1932). Boulder Canyon project funds may be used to purchase land title abstracts or certificates with or without insurance payment to be made under the appropriation available for the purchase price, if such abstracts or certificates are necessary to enable the Secretary of the Interior, or such of his subordinates as he may designate, to determine the validity of the title to the land to be acquired. Dec. Comp. Gen., A-39589 (January 29, 1932). The Boulder Dam appropriation is available for payment for placing and designing of panels, tablets, and inscriptions, award to be made on competitive designs by known artists. Dec. Comp. Gen., A-61595 (May 24, 1935). Sec. 4. (a) [When Act effective-Ratification of Colorado River compact— Proclamation by President-Agreement by California required-Agreement authorized by Arizona, California, and Nevada-Apportionment of watersConsumptive use of Gila River by Arizona-Water for domestic and agricultural use. This act shall not take effect and no authority shall be exercised hereunder and no work shall be begun and no moneys expended on or in connection with the works or structures provided for in this act, and no water rights shall be claimed or initiated hereunder, and no steps shall be taken by the United States or by others to initiate or perfect any claims to the use of water pertinent to such works or structures unless and until (1) the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming shall have ratified the Colorado River compact, mentioned in section 13 hereof, and the President by public proclamation shall have so declared, or (2) if said States fail to ratify the said compact within six months from the date of the passage of this act then, until six of said States, including the State of California, shall ratify said compact and shall consent to waive the provisions of the first paragraph of Article XI of said compact, which makes the same binding and obligatory only when approved by each of the seven States signatory thereto, and shall have approved said compact without conditions, save that of such six-State approval, and the President by public proclamation shall have so declared, and, further, until the State of California, by act of its legislature, shall agree irrevocably and unconditionally with the United States and for the benefit of the States of Arizona, Colorado, Nevada, New Mexico, 420 BOULDER CANYON PROJECT ACT-SEC. 4 Utah, and Wyoming, as an express covenant and in consideration of the passage of this act, that the aggregate annual consumptive use (diversions less returns to the river) of water of and from the Colorado River for use in the State of California, including all uses under contracts made under the provisions of this act and all water necessary for the supply of any rights which may now exist, shall not exceed four million four hundred thousand acre-feet of the waters apportioned to the lower basin States by paragraph (a) of Article III of the Colorado River compact, plus not more than one-half of any excess or surplus waters unapportioned by said compact, such uses always to be subject to the terms of said compact. The States of Arizona, California, and Nevada are authorized to enter into an agreement which shall provide (1) that of the 7,500,000 acre-feet annually apportioned to the lower basin by paragraph (a) of Article III of the Colorado River compact, there shall be apportioned to the State of Nevada 300,000 acrefeet and to the State of Arizona 2,800,000 acre-feet for exclusive beneficial consumptive use in perpetuity, and (2) that the State of Arizona may annually use one-half of the excess or surplus waters unapportioned by the Colorado River compact, and (3) that the State of Arizona shall have the exclusive beneficial consumptive use of the Gila River and its tributaries within the boundaries of said State, and (4) that the waters of the Gila River and its tributaries, except return flow after the same enters the Colorado River, shall never be subject to any diminution whatever by any allowance of water which may be made by treaty or otherwise to the United States of Mexico but if, as provided in paragraph (c) of Article III of the Colorado River compact, it shall become necessary to supply water to the United States of Mexico from waters over and above the quantities which are surplus as defined by said compact, then the State of California shall and will mutually agree with the State of Arizona to supply, out of the main stream of the Colorado River, one-half of any deficiency which must be supplied to Mexico by the lower basin, and (5) that the State of California shall and will further mutually agree with the States of Arizona and Nevada that none of said three States shall withhold water and none shall require the delivery of water, which cannot reasonably be applied to domestic and agricultural uses, and (6) that all of the provisions of said tri-State agreement shall be subject in all particulars to the provisions of the Colorado River compact, and (7) said agreement to take effect upon the ratification of the Colorado River compact by Arizona, California, and Nevada. (45 Stat. 1058; 43 U.S.C. § 617c (a)) EXPLANATORY NOTES Presidential Proclamation: Effective Date of Act. On June 25, 1929, 46 Stat. 3000, President Hoover issued the following proclamation: "Pursuant to the provisions of section 4(a) of the Boulder Canyon project act approved December 21, 1928 (45 Stat. 1057), it is hereby declared by public proclamation: (a) That the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming have not ratified the Colorado River compact mentioned in section 13(a) of said act of December 21, 1928, within 6 months from the date of the passage and approval of said act. "(b) That the States of California, Colorado, Nevada, New Mexico, Utah, and |