be considered in the light of the Adjustment Act, which appears herein in chronological order.

Reference Source. An extensive compilation and review of the Boulder Canyon Project Act, the Colorado River Compact, the Mexican Water Treaty, contracts, liti

Colorado River Compact 14 Constitutionality 1

415

gation, and other documents relating to the Colorado River is found in Hoover Dam Documents (Wilbur and Ely), H. Doc. No. 717, 80th Cong., 2d Sess. (1948). It brings up to date an earlier work entitled The Hoover Dam Contracts (Ely), U.S. Department of the Interior (1933).

Costs, allocation and reimbursement of 15 Excess lands

17

The Boulder Canyon Project Act was passed in exercise of Congressional power to control navigable water for purposes of flood control, navigation, power generation, and other objects, and is equally sustained by power of Congress to promote the general welfare through projects for reclamation, irrigation, and other internal improvements. Arizona v. California, 373 U.S. 546, 587 (1963).

The Court judicially knows, from the evidence of history, that a large part of the Colorado River south of Black Canyon was formerly navigable and that the main obstacles to navigation have been accumulations of silt and irregularity in flow. Arizona v. California, 283 U.S. 423, 453 (1931).

Inasmuch as the grant of authority under the Boulder Canyon Project Act to build the dam and reservoir is valid as the constitutional power of Congress to improve navigation, it is not necessary to decide whether the authority might constitutionally be conferred for other purposes. Arizona v. California, 283 U.S. 423, 457 (1931). 2. Purpose-Generally

The whole point of the Boulder Canyon Project Act was to replace erratic, undependable, often destructive natural flow of the Colorado River with regular, dependable release of waters conserved and stored by the project, and thereunder, Congress made it clear that no one should use mainstream waters save in strict compliance with the scheme set up by the Act. Arizona v. California, 373 U.S. 546, 579 (1963). 3. River regulation

The release of water through the California Sluiceway at Imperial Dam in

order to transport sediment load downstream is appropriate to accomplish river regulation. The United States has, under the contract with Imperial Irrigation District and within the limitations provided, a prior right to release water for this purpose as compared with the diversion of water for generation of power at Pilot Knob. Also, Mexico cannot, under the Mexican Water Treaty, insist as a matter of right that all or substantially all of the water allotted to it under the Treaty be delivered via the AllAmerican Canal; nor can Mexico require that the United States assume responsibility either for the quality of the water delivered to it or for disposal of sediment load. Memorandum of Associate Solicitor Fisher, October 17, 1956.

4. Municipal water supplies

The Secretary of the Interior has authority under sections 1 and 5 of the Boulder Canyon Project Act to provide increased capacity in the All-American Canal to carry water to the City of San Diego for the beneficial consumptive use of the city. Solicitor Margold Opinion, 54 I.D. 414 (1934). 10. Limitations

The provision in section 1 of the Boulder Canyon Project Act empowering the Secretary of the Interior to construct a main canal connecting the Laguna Dam "or other suitable diversion dam" with the Imperial and Coachella Valleys does not authorize the building of or in any respect apply to the Parker Dam proposed to be constructed 70 miles upstream from Laguna Dam and canal without specific Congressional authorization as required by section 9 of the Act of March 3, 1899. United States v. Arizona, 295 U.S. 174 (1935). (Editor's Note: The Parker Dam was subsequently authorized by the Act of August 30, 1935. Extracts from both Acts, including the relevant sections, appear hercin in chronological order.)

Neither the Boulder Canyon Project Act nor the Reclamation laws generally authorize the Secretary of the Interior to establish a Federal reservation, in connection with the construction of the dam and powerplant, over which the United States would have exclusive jurisdiction pursuant to a Nevada statute generally ceding jurisdiction

416

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.

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Supplementary Provision: Interest Rate. Section 6 of the Boulder Canyon Project Adjustment Act, approved July 19, 1940, provides that: "Whenever by the terms of the Project Act or this Act payment of interest is provided for, and whenever interest

Advances 1

Economy Act deductions 4 2

Flood control
School purposes 3

1. Advances

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.

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 622 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