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proper means to protect it from such damage or interference, payment from the reclamation fund of the reward so offered would be authorized when satisfactory proof of the earning thereof has been presented. (Comp. Dec., March 7, 1913.)
In view of the fact that the Reclamation Service (Bureau of Reclamation) must proceed in many cases in conformity with State laws, and it is necessary to institute cases in State courts or intervene in those brought by others, the expense of such proceedings in State courts in payment of lawful costs, including expenses of necessary printing and costs of appeal bonds, should be charged to the reclamation fund. It is understood, of course, that such proceedings on behalf of the United States will be instituted by or with the authority of the Attorney General, and that it is not intended by this decision to include compensation to attorneys or counsel. (Comp. Dec., June 30, 1914, and December 6, 1916.)
Costs in an action against an employee of the Reclamation Service (Bureau of Reclamation), which is defended for said employee by the United States, are payable out of the reclamation fund. (Comp. Dec., in re Marley v. Cone (Salt River), December 6, 1916.)
Reimbursement can not be made from the reclamation fund to a bank to cover exchange on a check given in payment of water charges. (Comp. Dec., in re C. W. Kellogg, March 9, 1917.)
In a decision rendered July 18, 1924 (A-2537), in connection with work under article 6 of the treaty with Great Britain regarding St. Maryand Milk Rivers, the Comptroller General ruled that the appropriation of $100,000 for investigations of secondary projects from the reclamation fund made by act of January 24, 1923 (42 Stat. 1207), could not be used on work under said treaty, as the proposed work was not in connection with "examination and survey for the construction and maintenance of irrigation works, etc.," and not within the purpose for which the reclamation fund was established.
Where a reservoir is being constructed under the reclamation act upon a site remote from civilization and 30 miles from the nearest school, and it is difficult, without school facilities, to secure a proper supply of efficient labor for the needs of such construction, particularly bosses and skilled workmen with families, and the erection of a school building will aid in securing more men, induce them to remain longer in the service, and be in the interest of the Government, then the cost of such a building may be paid from the reclamation fund. (Comp. Dec., September 24, 1917, in re Rimrock, Yakima.)
If a grantor of land to the United States for a nominal consideration pays the stamp taxes provided for deeds of conveyance under the "Revenue act of 1918," approved February 24, 1919 (40 Stat. 1057), he may properly be reimbursed therefor from the reclamation fund as a part of the consideration for the land conveyed. (Comp. Dec., April 22, 1919.)
The purchase of ice to cool the available supply of drinking water, when necessary from the Government's standpoint, as in the case of water furnished construction gangs employed on projects of the Reclamation Service (Bureau of Reclamation), is authorized. When such facts are shown on the vouchers or otherwise in the accounts, payment for such purchases is authorized from the same funds as the other expenses of such construction. (5 Comp. Gen. 201 ; C. L. 1460.)
Payment of the expenses of Federal employees while attending a State court can not be authorized from appropriated funds merely because the State law prohibits such payments to Government employees, if such be the case; nor may they be paid their salaries while so absent from duty unless they are entitled to annual leave and such absence is charged thereto. (Comp. Gen. Decision A-22498, April 27, 1928, citing 2 Comp. Gen. 801, in which it was held that fees and mileage may be paid from the appropriation “Fees of witnesses, United States courts,” to persons possessing information and willing to make affidavit for the purpose of aiding prohibition enforcement officers, and who are subpoenæed to appear before a judge or a United States commissioner to make affidavits as a basis for issuing a search warrant.)
See notes under section 10 of this act.
Reclamation Service (Bureau of Reclamation).-The Reclamation Service (Bureau of Reclamation) is not a department or establishment of the Government in Washington, but a field service, and the act of June 17, 1910 (36 Stat. 531), relative to purchase of supplies for executive departments and other establishments in Washington is not applicable to the field force of the Reclamation Service (Bureau of Reclamation). (20 Comp. Dec. 42, 13 idem, 733; 11 idem, 595.)
The Bureau of Reclamation (Reclamation Service) is a field service under the control of the Secretary of the Interior, with its headquarters located in Washington, D. C., and the accounts thereof are required by section 22 of the act of July 31, 1894 (28 Stat. 211), as extended by section 304 of the act of June 10, 1921 (42 Stat. 24), to be administratively examined at the seat of Government. (3 Comp. Gen. 931. See also 13 Comp. Dec. 733, 734.)
The provision in the sundry civil act of June 30, 1906 (34 Stat. 727), authorizing the Secretary of the Interior to permit scientific and other employees of the Geological Survey employed in the field to make assignments of their pay and to reimburse such employees for expenses incurred by them in the discharge of their duties in the field and paid by them from their personal funds, does not extend to employees of the Reclamation Service (Bureau of Reclamation). (13 Comp. Dec. 783. See act May 27, 1908, 35 Stat. 350.)
See 19 Comp. Dec. 181, in reference to chief of field party taking affidavit to expense account.
The construction of the Agency Valley Dam in a remote locality in Oregon caused a large increase in the District school attendance in that locality and the Bureau considered paying a proportionate share of the school cost. The Comptroller General, however, ruled that there is no provision in the Reclamation Act or its amendments, in the annual appropriations, or in title II of the National Industrial Recovery Act, authorizing the use of public funds for the education of children of employees engaged on reclamation projects; that the cost of educating children of Federal employees is not now and never has been regarded generally as a responsibility of the Federal government, and in the absence of special statutory authority, Federal funds are not available for such payments. (Decision of Comp. Gen., A-62267, Aug. 12, 1935.)
Miscellaneous reference.-Weil on Water Rights in the Western States (3d ed., vol. 2, ch. 60-63, po, 1275-1325.)
Kinney on Irrigation and Water Rights, (2d ed., vol. 3, ch. 65, pp. 2232-2339.) Long on Irrigation (2d ed., sec. 308.)
Sec. 2. [Authority to locate and construct irrigation works—Report to Congress.]—That the Secretary of the Interior is hereby authorized and directed to make examinations and surveys for, and to locate and construct, as herein provided, irrigation works for the storage, diversion, and development of waters, including artesian wells, and to report to Congress at the beginning of each regular session as to the results of such examinations and surveys, giving estimates of cost of all contemplated works, the quantity and location of the lands which can be irrigated therefrom, and all facts relative to the practicability of each irrigation project; also the cost of works in process of construction as well as of those which have been completed. (32 Stat. 388.)
Textual note.—This section is codified as section 411, title 43, United States Code, the first words, down through "herein provided", reading as follows: "The Secretary of the Interior is authorized and directed to make examinations and surveys for, and to locate and construct, as provided in this chapter."
NOTES Governmental function not exercised in construction of works.-In the construction of works for the irrigation of arid public lands, the United States is not exercising a governmental function, nor even a strictly public function, but
is promoting its proprietary interests. (Twin Falls Canal Co. v. Foote (C. C. Ida. 1911), 192 Fed. 583.)
Construction of drainage works by United States and use thereof.--The United States may construct drainage works as a part of its irrigation system for a reclamation project. (Yuma County Water Users' As8'n v. Schlecht (C. C. A. Ariz. 1921), 275 Fed. 885; affirmed (1923), 43 Sup. Ct. 498, 262 U. S. 138, 67 L. Ed. 909.)
The United States can save and continue to use the drainage, seepage, and waste waters from its reclamation project, even after such waters had been allowed to escape, so long as they could be identified and had not been abandoned. (Idem.)
Even if waste water from a Government reclamation project had once been abandoned, the Government could thereafter reclaim such water and apply it to beneficial use, if no right of third parties had intervened. (Idem.)
Conclusiveness of decision of Secretary of the Interior.–Necessity for drainage in connection with a reclamation project and the method of conducting the work are in the sound discretion of the Secretary of the Interior, and his discretion can not be reviewed by the courts. (Idem.)
"Including artesian wells."---This phrase is used to describe one class of irrigation works to be constructed in carrying out the scheme for reclaiming arid lands provided for in the act, and it is not contemplated by this section that such wells may be sunk as a part of the preliminary examinations authorized therein. (Secretary's instructions, March 3, 1903, 32 L. D. 278.)
In the prosecution of the work provided for in the act it is not permissible to siok an artesion well where it is believed that if water is found it will not be suitable or needed or used for irrigation purposes. (Idem.)
See note of Comptroller General's decision under caption "Artesian well,” interpreting item in second deficiency act dated May 29, 1928 (45 Stat. 883.)
Examination of reclamation lands.—The Reclamation Service (Bureau of Reclamation) can not, while construction of a project is in progress, and prior to the laying out of its canals, undertake to reexamine, at the instance of individual claimants, particular tracts falling within the project, to ascertain whether or not such tracts are capable of service from its projected canals. (Lewis Wilson, 42 L. D. 8. See also 48 L. D. 153, amending paragraph 13 of general reclamation circular of May 18, 1916.)
Water appropriation. When the Secretary of the Interior in the exercise of a reasonable discretion determines as to the validity of title to and as to the value of a right to appropriate water for irrigation purposes to be acquired by him under the provisions of the act of June 17, 1902, his decision is conclusive upon the accounting officers. (14 Comp. Dec. 724.)
Infeasible project.—The Secretary of the Interior is under a duty to withbold the construction of a reclamation project and lay the matter before Congress if he concludes that it is not a feasible project. (34 Op. Atty. Gen. 545.)
Printing of annual report may be discontinued. The act of February 23, 1927 (4 Stat. 1161), authorized the discontinuance of printing the annual ieport. The act of March 3, 1925 (43 Stat. 1143), codified as section 495, title 5, United States ('ode, limits the size of the annual reports of the Department of the Interior and of all its bureaus and establishments, including the Bureau of Reclamation, to 1,250 pages.
See notes under sections 4 and 7 of this act.
Sec. 3. (Withdrawal of lands for irrigation works-Withdrawal of lands susceptible of irrigation Homestead entries—Determination whether project is practicable—Restoration and entry—Commutation.]—That the Secretary of the Interior shall, before giving the public notice provided for in section 4 of this act, withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act, and shall restore to public entry any of
the lands so withdrawn when, in his judgment, such lands are not required for the purposes of this acts and the Secretary of the Interior is hereby authorized, at or immediately prior to the time of beginning the surveys for any contemplated irrigation works, to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from said works: Provided, That all lands entered and entries made under the homestead laws within areas so withdrawn during such withdrawal shall be subject to all the provisions, limitations, charges, terms, and conditions of this act; that said surveys shall be prosecuted diligently to completion, and upon the completion thereof, and of the necessary maps, plans, and estimates of cost, the Secretary of the Interior shall determine whether or not said project is practicable and advisable, and if determined to be impracticable or unadvisable he shall thereupon restore said lands to entry; that public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws in tracts of not less than 40 nor more than 160 acres, and shall be subject to the limitations, charges, terms, and conditions herein provided : Provided, That the commutation provisions of the homestead laws shall not apply to entries made under this act. (32 Stat. 388.)
Textual note.-The first part of section through the first proviso and ending with the semicolon after "restore said lands to entry," is codified as section 416, title 43, United States Code. In the code the introductory word “That" is omitted ; the word "act, occurring three times, is changed to "chapter": and "section 4 of this act." in the second line, reads "section 419 of this chapter." The clause after the semicolon mentioned, through the words "one hundred and sixty acres," with the omission of the first word "that" and with the omission of the words "only under the provisions of the homestead laws," is codified as the first clause of section 434, title 43, United States Code. Section 432, title 43, United States Code, reads as follows: "Public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws, and shall be subject to the limitations, charges, terms, and conditions herein provided : Provided, That the commutation provisions of the homestead laws shall not apply to entries made under this chapter."
1. Nature of authority.-The authority to withdraw lands for irrigation purposes conferred upon the Secretary of the Interior is a special authority to make withdrawals for a particular purpose and is limited to the specific uses provided for in the act, or to uses incident to and in furtherance thereof. (Op. Asst. Atty. Gen., 33 L. D. 415.)
2. Classes of withdrawals.—There are two classes of withdrawals authorized by the act, one commonly known as "withdrawals under the first form,” which embraces lands that may possibly be needed in the construction and maintenance of irrigation works, and the other, commonly known as "withdrawals under the second form," which embraces lands not supposed to be needed in the actual construction and maintenance of irrigation works but which may possibly be irrigated from such works. (General Land Office circular of June 6, 1905, 33 L. D. 607.)
Two classes of withdrawals are provided by the act, and the exception of homestead entry from the second has no application to the first, withdrawals and reservations under the first class being from the necessity of the case absolute. (United States v. Hanson (Wash. 1909), 167 Fed. 881; 93 C. C. A. 371.)
As to discontinuance of temporary withdrawals, see Charles G. Carlisle (35 L. D. 649), overruling Mercer v. Buford Townsite (35 L. D. 119).
3. Lands subject to withdrawal.-By a successful contest against a desert-land entry the contestant does not acquire such a preference right of entry as will, prior to its exercise, except the land from the operation of a withdrawal made under said act. (Emma H. Pike, 32 L. D. 395.)
The Secretary of the Interior has the same right to withdraw lands within the Yosemite National Park, created by the act of October 1, 1890 (26 Stat. 650), for the uses and purposes contemplated by the act of June 17, 1902 (32 Stat. 388), that he has to withdraw lands for such purposes within forest reservation created under authority of the act of March 3, 1891 (26 Stat. 1095). (Op. Asst. Atty. Gen., 33 L. D. 389.)
Where the affidavit as to the character and condition of the land, accompanying an application to make selection under the act of June 4, 1897 (30 Stat. 36), is executed before the selector acting as notary public, such affidavit is void, and the application can therefore have no effect to except the lands covered thereby from a subsequent withdrawal embracing the same in accor ce with the provisions of section 3 of the act of June 17, 1902. (Peter M. Collins, 33 L. D. 350.)
No such rights are acquired by settlement upon lands embraced in the entry of another as will attach upon cancellation of such entry, where at that time the lands are withdrawn for use in connection with an irrigation project; nor is there any authority for purchase by the Government of the settler's claim or of the improvements placed upon the land by him. (George Anderson, 34 L. D. 478.)
The fact that the act of April 18, 1896 (29 Stat. 95), provides that the lands in the abandoned portion of the Fort Assiniboine Military Reservation, thereby opened to entry, shall be disposed of only under the laws therein specifically named, does not prevent a withdrawal under the act of June 17, 1902 (32 Stat. 388), of any of said lands as to which no vested right has attached. (Mary C. Sands, 34 L. D. 653.)
Lands formerly within the Fort Buford Military Reservation were by the act of May 19, 1900 (31 Stat. 180), restored to the public domain and made subject to existing laws relating to disposal of the public lands, except such laws as are not specifically named therein, and are subject to withdrawal under the reclamation act as other portions of the public domain subject to entry under the general land laws; and a withdrawal of such lands for reclamation purposes is effective as to all of the lands for which entry was not made within