United States v. Fort Belknap Irrigation District
| Decision Date | 14 September 1961 |
| Docket Number | Civ. No. 2162. |
| Parties | UNITED STATES of America, Plaintiff, v. FORT BELKNAP IRRIGATION DISTRICT, Alfalfa Valley Irrigation District, Zurich Irrigation District, Paradise Valley Irrigation District, Harlem Irrigation District, Defendants. |
| Court | U.S. District Court — District of Montana |
COPYRIGHT MATERIAL OMITTED
Moody Brickett, U. S. Atty., Butte, Mont., and Warren R. Wise, Atty., Dept. of Justice, Washington, D. C., for plaintiff.
Burns & Thomas, Chinook, Mont., and Keller & Magnuson and Paul F. Reynolds, Helena, Mont., for defendants.
Plaintiff seeks recovery of sums expended in 1958 and 1959 for work on Sherburne Dam on Swiftcurrent Creek in northwestern Montana and an injunction against diversion of waters from Milk River by the defendants until they have paid charges assessed against them. Sherburne Dam is part of the Milk River Reclamation Project constructed and operated by plaintiff under the Reclamation Act of June 17, 1902 (32 Stat. 388), as amended. The defendants, comprising the Chinook Division of the Milk River Project, are irrigation districts organized under the laws of Montana. The primary question presented is whether under the applicable laws and contracts between plaintiff and defendants the work performed was "maintenance", as plaintiff contends, or "construction", as defendants contend.1
Most of the facts were stipulated and incorporated in a pretrial order. Supplemental testimony was presented at a trial beginning May 31, 1961. Exhaustive briefs have been filed by the respective parties.
The Milk River Project utilizes waters of Swiftcurrent Creek which come from the heavy snowfall in the high mountain basin which the creek drains. The water is stored behind Sherburne Dam, released into Swiftcurrent Creek and runs into St. Mary's River, where it is diverted, together with the natural flow of the river, through a canal into the North Fork of Milk River. It flows in that river 216 miles where it is stored by Fresno Dam. The defendant districts are located downstream from Fresno Dam. Each has a contract with the United States pursuant to which the waters of Swiftcurrent Creek and St. Mary's River, released from Fresno Dam, are diverted for irrigation of lands within the districts.
Sherburne Dam is an earth-filled structure, built between 1915 and 1919. After the concrete spillway was partially finished, it was discovered that the hillside to the left of the spillway was moving toward the spillway. Further work on the spillway was terminated while efforts were made to stabilize the hillside. These efforts were unsuccessful and the spillway was completed with timber rather than concrete as originally planned. Water was never discharged through the concrete and timber spillway. The cost of the spillway was approximately $299,000.
The dam was designed to discharge water through cylinder gates located near the bottom and top of the outlet tower in the dam. Six slide gates were also installed in the outlet tower for emergency control. When the cylinder gates were first used in 1919, the lower gate did not close properly because gravel lodged between its stationary and movable parts. Concrete frame and oak sealing strips were installed in the gate in 1921 to keep out the gravel. The gate functioned without trouble until 1937, though it was cleaned out in 1932. The gate was difficult to operate in 1937 but gave no trouble in 1938. In 1939 difficulty again occurred, and in 1940 discharge had to be controlled by the emergency slide gates. The lower gate was dewatered and inspected in 1941 to determine the cause of the trouble. It was discovered that the oak seals installed in 1921 were missing and gravel was again preventing the gate from closing.
After 1941, until the recent work on the dam was completed, operation of Sherburne Dam was in this state: No spillway was available so the reservoir had to be filled without spills. To do this, the spring flood flow had to be predicted and the reservoir filled by regulating the discharge from the dam so that the reservoir would be full when the flood flow ceased. The discharge of water from the dam had to be regulated by the emergency slide gates because of the condition of the lower cylinder gate. As added protection against spills, the reservoir was operated at 60,000 acre-feet capacity.2
The flood run-off in Swiftcurrent Creek was exceptionally heavy in the Spring of 1948. Sherburne reservoir rose to within four feet of the unusable spillway before the rate of inflow dropped back to the capacity of the outlet works. The heavy discharge of water through the slide gates at this time caused vibrations in the outlet gate tower.
A team of engineers inspected Sherburne Dam in the Fall of 1948 to determine what work delayed because of World War II was needed. They questioned whether those operating the dam could continue to predict spring flood inflow accurately enough to fill the reservoir without spills. They suggested that too many chances were being taken and recommended that the original spillway site be abandoned and an overflow spillway installed in the dam. They also recommended that the cylinder gates be placed in condition for operation at all times. A similar inspection in 1949 led to the same recommendations.
The old spillway was diked off to prevent spills through it when the Bureau of Reclamation decided in 1951 that the dam could be operated without a spillway if the practice of emptying the reservoir and filling it by prediction of spring flood inflow was continued. A six-foot gap between the top of the dike and the crest of the dam was left, however, in case of error in predicting the flood inflow or in determining the discharge required to prevent overtopping the dam.
The work on the dam in 1958 and 1959 consisted of the following:
Replacement of the cylinder
gates by high pressure
gates, at a cost of $137,411.48
Repair of the eroded and
abraded concrete areas within
the outlet works, at a cost
of 63,218.60
Installation of a glory-hole
spillway in the outlet tower
at a cost of 54,262.72
Raising the dike cutting off
the original spillway at a
cost of 32,793.21
___________
Total $287,686.01
The Bureau of Reclamation sought an agreement from the defendant districts, as well as the Malta and Glasgow Districts of the Project, to repay their respective shares of these expenditures under the provisions of the Rehabilitation and Betterment Act of 1949.3 None of the defendant districts would agree to do so. The Commissioner then decided to proceed with the work as an ordinary maintenance cost. An estimate of the cost was approved by the Commissioner and Secretary of the Interior and transmitted to Congress. Funds were appropriated in the Public Works Appropriation Acts of 1959 (72 Stat. 1527) and 1960 (73 Stat. 491), 43 U.S.C.A. § 377a. Each defendant was then charged by the Bureau for its share of the cost under the provision of its contract obligating it to pay for the maintenance of Sherburne Dam.4
The Malta and Glasgow Irrigation Districts agreed to repay their shares of the cost of the work on Sherburne Dam under the provisions of the Rehabilitation and Betterment Act of 1949. Water from Sherburne Lakes Reservoir released from Fresno Reservoir for delivery to these two irrigation districts, and for delivery to other users downstream, must pass the points of diversion for defendant districts. These points of diversion are under the control of defendant districts. Although requested by the Bureau of Reclamation to comply with the provision of their contracts requiring surrender of control of their headgates when they are in default in payment of their maintenance charges, each defendant district has refused on the ground that it is not in default in payment of maintenance charges. Each likewise threatens to "resist any effort by the United States to take control" of its point of diversion from the Milk River.
The parties have agreed that the issues of law are:
1. Whether the work done by plaintiff was maintenance or original or new construction within the meaning of the Reclamation Law, 43 U.S.C.A. § 371 ff, and the contracts between plaintiff and each of the respective defendants.
2. Whether the decision of the Secretary of the Interior that the work should be performed, the action of Congress in appropriating funds to pay for the work, and the allocation of the cost to the defendant districts by the Secretary of the Interior may be challenged judicially by defendant districts.
3. Whether the act of the Secretary of the Interior in authorizing the work and in charging the defendant districts with the cost thereof as a maintenance charge was arbitrary and capricious.
4. Whether the work performed was such as is contemplated and covered by the provisions of 43 U.S.C.A. § 504.
5. Whether any law of the State of Montana precludes defendant districts from levying charges adequate to pay for the work done on Sherburne Dam.
6. Whether defendant districts may and should be enjoined from diverting water from Milk River until they have paid the charges assessed to them as maintenance under their contracts with the United States.
Was the work performed "maintenance" or "construction"?
Under Section 4 of the Reclamation Extension Act (43 U.S.C.A. § 469) no increase in "construction" may be made without the consent of the water users. Under section 5 (43 U.S.C.A. § 492) the water users must pay annually an "operation and maintenance" charge. In essence the same provisions are incorporated in the contracts between plaintiff and the respective defendants, articles 10 and 15 limiting construction charges to the amounts therein specified, and article 12 providing for payment of each defendant's proportionate share...
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