USE OF CONSTRUCTION MATERIALS FROM PUBLIC LANDS AND

FORESTS

An act authorizing the use of earth, stone, and timber on the public lands and forest reserves of the United States in the construction of works under the national irrigation law. (Act February 8, 1905, ch. 552, 33 Stat. 706)

[Section 1. Use of earth, stone, and timber on public lands for irrigation works.]-That in carrying out the provisions of the national irrigation law, approved June seventeenth, nineteen hundred and two, and in constructing works thereunder, the Secretary of the Interior is hereby authorized to use and to permit the use of by those engaged in the construction of works under said law, under rules and regulations to be prescribed by him, such earth, stone, and timber from the public lands of the United States as may be required in the construction of such works, and the Secretary of Agriculture is hereby authorized to permit the use of earth, stone, and timber from the forest reserves of the United States for the same purpose, under rules and regulations to be prescribed by him. (33 Stat. 706.)

Textual note.-This act is codified as section 420, title 43, United States Code. In the code the introductory word "That" is omitted; the words beginning with "the national," in the first line, and ending with "and two," in the second line, are replaced by "this chapter."

NOTES

Timber from national forests.-Under this act the Reclamation Service (Bureau of Reclamation) may use timber from the national forests without charge in connection with work performed in cooperation with private parties under the provisions of the Warren Act of February 21, 1911 (36 Stat. 925). (In re Jackson Lake, Op. Atty. Gen., July 3, 1915; 30 Op. Atty. Gen. 398.)

Subject to the necessities of reclamation use, the timber on withdrawn lands may be sold by the Department of Agriculture without reference to the Reclamation Service (Bureau of Reclamation). (Op. Atty. Gen., July 3, 1915; 30 Op. Atty. Gen. 398.)

But see act July 19, 1919 (41 Stat. 202), giving additional jurisdiction to Secretary of the Interior.

Forest reserves.-The words "forest reserves" in this act should read "national forests." See act March 4, 1907, ch. 2907, 34 Stat. 1269.

CHANGING LEVELS OF LAKES IN OREGON AND CALIFORNIA

An act authorizing the changing of the levels of certain lakes and the disposal of certain lands under the terms of the national reclamation act. (Act February 9, 1905, 33 Stat. 714.)

[Sec. 1. Authority to change lake levels and dispose of lands.]-That the Secretary of the Interior is hereby authorized in carrying out any irrigation project that may be undertaken by him under the terms and conditions of the national reclamation act and which may involve the changing of the levels of Lower or Little Klamath Lake, Tule or Rhett Lake, and Goose Lake, or any river or other body of water connected therewith, in the States of Oregon and California, to raise or lower the level of said lakes as may be necessary and to dispose of any lands which may come into the possession of the United States as a result thereof by cession of any State or otherwise under the terms and conditions of the national reclamation act. (33 Stat. 714.) Textual note. This act is codified as section 601, title 43, United States Code, the first word "That" being omitted, and "reclamation act" reading "reclamation law."

NOTES

Oregon legislation.-In connection with the above statute the State of Oregon enacted the following law:

An act to authorize the utilization of Upper Klamath Lake, Lower or Little Klamath Lake, and Tule or Rhett Lake, situate in Klamath County, Oregon, and Goose Lake, situate in Lake County, Oregon, in connection with the irrigation and reclamation operations of the Reclamation Service of the United States, and to cede to the United States all the right, title, interest, and claim of the State of Oregon to any and all lands recovered by the lowering of the water levels or by the drainage of any or all of said lakes

Be it enacted by the Legislative Assembly of the State of Oregon; be it enacted by the people of the State of Oregon:

SECTION 1. That for the purpose of aiding in the operations of irrigation and reclamation conducted by the Reclamation Service of the United States, established by the act of Congress approved June 17, 1902 (32 Stat. 388), known as the reclamation act, the United States is hereby authorized to lower the water level of Upper Klamath Lake, situate in Klamath County, Oregon, and to lower the water level of or to drain any or all of the following lakes: Lower or Little Klamath Lake and Tule or Rhett Lake, situate in Klamath County, Oregon, and Goose Lake, situate in Lake County, Oregon, and to use any part or all of the beds of said lakes for the storage of water in connection with such operations.

SEC. 2. That there be, and hereby is, ceded to the United States all the right, title, interest, or claim of this State to any land uncovered by the lowering of the water levels or by the drainage of any or all of said lakes not already disposed of by the State; and the lands hereby ceded may be disposed of by the United States, free of any claim on the part of this State in any manner that may be deemed advisable by its authorized agencies, in pursuance of the provisions of said reclamation act.

Approved January 20, 1905. (General Laws of Oregon, 1905, p. 63.)

In decision of the Solicitor dated June 9, 1932 (M-27055), approved by the Department, it was held that the Oregon Act quoted above did not authorize a use of uncovered land formerly under the waters of Lower Klamath Lake for a migratory bird refuge, the reclamation use to be superseded. It was held, however, that the land could be used for flowage or agricultural purposes (53 I. D. 693).

California legislation.-The State of California passed the following law:

An act authorizing the United States Government to lower the water levels of any or all of the following lakes: Lower or Little Klamath Lake, Tule or Rhett Lake, Goose Lake,

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CHANGING LEVELS OF LAKES IN OREGON AND CALIFORNIA

and Clear Lake, situated in Siskiyou and Modoc Counties, and to use any part or all of the beds of said lakes for the storage of water in connection with the irrigation and reclamation operations conducted by the Reclamation Service of the United States; also ceding to the United States all right, title, interest, or claim of the State of California to any lands uncovered by the lowering of the water levels of any or all of said lakes not already disposed of by the State

The people of the State of California, represented in senate and assembly, do enact as follows:

SECTION 1. That for the purpose of aiding in the operations of irrigation and reclamation conducted by the Reclamation Service of the United States, established by the act of Congress approved June seventeenth, nineteen hundred and two (Thirty-second Statutes, page three hundred and eighty-eight), known as the reclamation act, the United States is hereby authorized to lower the water levels of any or all of the following lakes: Lower or Little Klamath Lake, Tule or Rhett Lake, Goose Lake, and Clear Lake, situated in Siskiyou and Modoc Counties, as shown by the map of the United States Geological Survey, and to use any part or all of the beds of said lakes for the storage of water in connection with such operations.

SEC. 2. And there is hereby ceded to the United States all the right, title, interest, or claim of this State to any lands uncovered by the lowering of the water levels of any or all of said lakes not already disposed of by this State; and the lands hereby ceded may be disposed of by the United States free of any claim on the part of this State in any manner that may be deemed advisable by the authorized agencies of the United States in pursuance of the provisions of said reclamation act: Provided, That this act shall not be in effect as to lakes herein named, which lie partly in the State of Oregon, until a similar cession has been made by that State.

Approved, February 3, 1905. (Cal. Stats. 1905, p. 4.)

The act of May 27, 1920 (41 Stat. 627), authorizes the restoration of certain lands reserved for a bird reservation pursuant to the enactment of the two above-quoted State acts.

Interpretation of California act.-The State of California made application to the General Land Office for a survey, with a view to the subsequent issuance of patent to the State under the swamp-land act of September 28, 1850 (9 Stat. 519), of alleged swamp and overflowed lands in T. 47 N., Rs. 2 and 3 E., and T. 48 N., Rs. 1, 2, and 3 E., Mount Diablo meridian, Calif. The lands for which survey and patent were asked are areas lying between the precipitous banks in the lower portion of the lower Klamath Lake area and the high ground. The department, in denying the application of the State in an opinion dated June 25, 1919 (47 L. D. 207, affirmed on rehearing 47 L. D. 212), held that under the act of the State of California of February 3, 1905 (California Statutes, 1905, p. 4), these lands were ceded to the United States, and are now held subject to disposition only under the general reclamation laws; that the department is without authority to recognize or entertain any claim on the part of the State therefor under the swamp-land act or under any other existing law; and that the title of the United States to these lands can be divested only by act of Congress. (See Churchhill Co. v. Kingsbury (Sup. Ct. Calif. 1918), 174 Pac. 329.)

The decision at 47 L. D. 207 was referred to and summarized in decision of the Solicitor dated June 9, 1932 (M-27055), approved by the Department.

In said decision of the Solicitor of June 9, 1932, it was held that the California act quoted above did not authorize a use of uncovered land formerly under the waters of Lower Klamath Lake for a migratory bird refuge, the reclamation use to be superseded. It was held, however, that the land could be used for flowage or agricultural purposes (53 I. D. 693).

Contract with California Oregon Power Co.-By contract executed in 1917 on behalf of the United States by Secretary Franklin K. Lane the California Oregon Power Co. was given the right to construct and operate a dam at the outlet of Upper Klamath Lake and to regulate the flow of the water in the lake for 50 years. For a copy of this contract and a large amount of data concerning it see joint hearings by the Senate and House committees in connection with S. 3189 and H. R. 9493, first session Sixty-ninth Congress.

Cross reference.-The act of March 3, 1923 (42 Stat. 1438), authorizes the State of California to bring suit against the United States to determine title to certain lands in Siskiyou County, Calif.

CONSTRUCTION OF RIO GRANDE DAM

An act relating to the construction of a dam and reservoir on the Rio Grande, in New Mexico, for the impounding of the flood waters of said river for the purposes of irrigation. (Act February 25, 1905, 33 Stat. 814)

[Sec 1. Reclamation act to apply to portion of Texas-Subject to certain conditions, irrigation dam may be constructed on the Rio Grande.]— That the provisions of the reclamation act approved June seventeenth, nineteen hundred and two, shall be extended for the purposes of this act to the portion of the State of Texas bordering upon the Rio Grande which can be irrigated from a dam to be constructed near Engle, in the Territory of New Mexico, on the Rio Grande, to store the flood waters of that river, and if there shall be ascertained to be sufficient land in New Mexico and in Texas which can be supplied with the stored water at a cost which shall render the project feasible and return to the reclamation fund the cost of the enterprise, then the Secretary of the Interior may proceed with the work of constructing a dam on the Rio Grande as part of the general system of irrigation, should all other conditions as regards feasibility be found satisfactory. (33 Stat. 814.)

NOTES

Purpose of act.-This act was passed for the purpose of enabling the United States to carry into effect the terms of a proposed treaty or convention with Mexico, which was afterwards signed on May 21, 1906 (34 Stat 2953). (Burley v. United States (Idaho, 1910), 179 Fed. 1; 102 C. C. A. 429; 33 L. R. A. (N. S.) 807, affirming (C. C. 1909) 172 Fed. 615.)

Dams across the Rio Grande.-The Secretary of the Interior had no power under the act of March 3, 1891 (26 Stat. 1093), providing for the location and selection of reservoir sites on the public lands of the United States and rights of way for the irrigating ditches and canals, to grant a right to construct dams across the Rio Grande for the purpose of checking the flow of water and distributing it for irrigation purposes. The control and supervision of the navigable waters of the United States are vested in the Secretary of War. The remedy of the United States in case of the erection of a dam across navigable waters is by injunction, under section 10 of the act of September 19, 1890 (26 Stats. 454), and if the dam has been constructed, also by criminal prosecution. (21 Op. Atty. Gen. 518.)

Effect of treaty of Guadalupe Hidalgo upon irrigation from the Rio Grande.Article VII of the treaty of February 2, 1848, between Mexico and the United States, known as the treaty of Guadalupe Hidalgo, is still in force, so far as it affects the Rio Grande. (21 Op. Atty. Gen. 274.)

The taking of water for irrigation from the Rio Grande above the point where it ceases to be entirely within the United States and becomes the boundary between the United States and Mexico is not prohibited by said treaty. (Idem.)

See United States v. Rio Grande Dam & Irrigation Co. (174 U. S. 690; 184 U. S. 416; 215 U. S. 266.)

Article VII is limited in terms to that part of the Rio Grande lying below the southern boundary of New Mexico and applies to such works alone as either party might construct on its own side. (Idem.)

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CONSTRUCTION OF RIO GRANDE DAM

The only right the treaty professed to create or protect with respect to the Rio Grande was that of navigation. Claims against the United States by Mexico for indemnity for injuries to agriculture alone, caused by scarcity of water resulting from irrigation ditches wholly within the United States at places far above the head of navigation, find no support in the treaty. (Idem.) International law. The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entirely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States. (21 Op. Atty. Gen. 274.)

The fact that there is not enough water in the Rio Grande for the use of the inhabitants of both countries for irrigation purposes does not give Mexico the right to subject the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory. The recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain. (Idem.)

Miscellaneous.-Treaty with Mexico of May 21, 1906 (34 Stat. 2953).

Act of June 12, 1906 (34 Stat. 259), extending the reclamation act to the State of Texas.

Document No. 39, House of Representatives, Sixty-second Congress, first session, waters of the Rio Grande and its tributaries.

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