Yellen v. Hickel

• Decision Date: 23 November 1971
• Docket Number: Civ. No. 69-124.
• Court: U.S. District Court — Southern District of California
• Parties: Ben YELLEN et al., Plaintiffs, v. Walter J. HICKEL, individually and as Secretary of the Interior, et al., Defendants.

335 F. Supp. 200

Ben YELLEN et al., Plaintiffs, v. Walter J. HICKEL, individually and as Secretary of the Interior, et al., Defendants.

Civ. No. 69-124.

United States District Court, S. D. California.

November 23, 1971.

Arthur Brunwasser, San Francisco, Cal., for plaintiffs.

William R. Klein, Dept. of Justice, Lands and Natural Resources Div., Washington, D. C., and Harry D. Steward, U. S. Atty., San Diego, Cal., for defendants.

PARTIAL SUMMARY JUDGMENT

WILLIAM D. MURRAY, Senior District Judge.

Before the court is a motion for partial summary judgment. The suit was filed under 28 U.S.C.A. § 1361 to compel the Secretary of the Interior and lower level officials of the Department of the Interior to enforce the residency requirement of Section 5 of the Reclamamation Act of June 17, 1902, 32 Stat. 389, 43 U.S.C.A., Section 431,¹ against lands located within the Imperial Irrigation District in California which receive water from the Boulder Canyon Project through the All American Canal. It is the government's contention that Section 5 has been superseded by Section 46 of the Omnibus Adjustment Act of May 25, 1926, 44 Stat. 649, 43 U.S.C.A., Section 423e,² and therefore the residency requirement does not apply. For the following reasons this court finds that Section 5 is in force and the residency requirement is a prerequisite to receiving water from the Boulder Canyon Project.

The ruling on this motion is a determination made as a matter of law and does not depend upon any factual showing by the moving party beyond the allegations in the pleadings. There was a previous motion for summary judgment and that motion was denied without prejudice and therefore there is no bar to the present motion. Further the government raises the issue of standing in defense of this motion. A motion to dismiss for lack of standing to maintain a suit was denied at the same time as the previous motion for summary judgment, thus there is no need to rule on that question at this time.

The Boulder Canyon Project is authorized and governed by the Boulder Canyon Project Act of 1928, 45 Stat. 1057 et seq., 43 U.S.C.A. § 617 et seq. Under Sections 12 and 14 of that Act (45 Stat. 1064 and 45 Stat. 1065) the project is governed by the June 17, 1902 Act and "Act amendatory thereof and supplemental thereto". 43 U.S.C.A., Sections 617k, 617m. The question which concerns the court is whether Section 46 of the Omnibus Adjustment Act has so changed the original 1902 Act as to eliminate the residency requirement contained therein.

The government argues that under Section 46 of the 1926 Act the Secretary no longer is authorized to sell water directly to landowners on projects built thereafter. Instead, Section 46 requires the Secretary to contract with irrigation districts for delivery of water and repayment of the project and these contracts are required to impose certain conditions to which landowners must conform.³ Since none of these conditions include a residency requirement it is argued that the effect of Section 46 is to eliminate any residency requirement from all reclamation projects governed thereby. This argument proves to be incorrect when viewed in the light of sound statutory construction and the background and purpose behind both Section 5 and Section 46.

The government points to no specific provision of the Omnibus Adjustment Act which repeals Section 5 of the 1902 Act. Nor do they contend that the 1926 Act entirely repealed the 1902 Act. It is a general rule of statutory construction that where there are two acts on the same subject, effect should be given to both if possible. United States v. Borden Co., 308 U.S. 188, 198, 60 S. Ct. 182, 84 L.Ed. 181. Further, repeals by implication are not favored and the intention of the legislature to repeal must be clear and manifest. Even when there is a positive repugnancy between the provisions of the new law and the old law, then the old law is repealed only pro tanto to the extent of the repugnancy. United States v. Borden, supra.

Statutory construction of Section 5 and Section 46 reveals no repugnancy whatever. Section 5 requires that there is no right to use water on tracts of any one owner of over 160 acres and no water shall be sold to anyone not occupying the land or residing in the neighborhood. Section 46 establishes a system whereby the Secretary no longer sells to individuals, but to irrigation districts instead, and provides for a situation not contemplated in the original Act where water would be supplied through the irrigation district to private landowners of more than 160 acres in addition to settlers on public lands opened up for entry under the original reclamation law. There is no inconsistency in applying the requirements of Section 5 at the same time with those of Section 46. The latter merely provides for sale of excess lands over 160 acres if the private owner wants reclamation project water. Section 5 requires that he be a resident to get water at all. A literal reading of both statutes then reveals no implied intent on the part of Congress that the earlier statute would be repealed by Section 46. Since both can stand by reasonable construction, that construction must be adopted. Wilmot v. Mudge, 103 U.S. 217, 221, 26 L.Ed. 536 (1881).

The plain language of the Omnibus Adjustment Act of 1926 does not repeal Section 5 of the 1902 Act, nor is any legislative intent to do so exhibited in the Act's background. The basic purpose of the 1926 Act is expressed in 43 U.S.C.A., Section 423f, 44 Stat. 650 (May 25, 1926) as follows:

"The purpose of sections 423-423g of this title is the rehabilitation of the several reclamation projects and the insuring of their future success by placing them upon a sound operative and business basis, and the Secretary of the Interior is directed to administer said sections to those ends."

The report on the House version of the bill H.R. 10429 prepared by the Committee on Irrigation and Reclamation refers to the reclamation policy of the government which was adopted as a result of the Act of June 7, 1902. The report points out that while the law had provided that the cost of projects be returned to the reclamation fund, settlers had been unable to do so in full and therefore it would be necessary to authorize the Secretary to credit the projects with losses sustained. Then the report continued:

"It is confidently believed that with the adjustment authorized herein the various projects will be put on a basis which will restore the morale and enthusiasm of the settlers and enable them to meet their payments promptly in the future. The settlers on these projects have endured great hardships and have struggled against the most adverse conditions in their effort to cooperate with the government in reclaiming these desert wastes, and are entitled to the proposed relief which has been urged upon the committee by the Representatives from the arid land States and the Secretary of the Interior for many years." See Adjustment of Water Charges, House Report No. 617 to accompany H.R. 10429, 69th Cong. 1st Session.

It is clear from the report that the purpose of the 1926 Act was to provide relief to settlers then residing on the land. There is no indication that the Act was intended to change the policy of the reclamation law.

The government has cited Section 1 of the Act of August 9, 1912, 37 Stat. 265, 43 U.S.C.A. § 541 as additional support to the contention that residence is no longer intended as a requirement for water rights under reclamation law.⁴ That law requires that homestead entrymen submit proof of residency, reclamation and cultivation in order to obtain a patent while purchasers of water right certificates need only prove cultivation and reclamation of the land for a final certificate. This it is argued is evidence that residency has been eliminated as a requirement to receiving water. It is evident that Congress intended the Act to apply to purchasers of water rights for private lands as well as to entries of public lands. See House Committee on Irrigation of Arid Lands, Patent to Entrymen for Homesteads Upon Reclamation Projects, House Report No. 867 to accompany S. 5545, 62d Congress 2d Session, and I Department of Interior, Federal Reclamation Laws Annotated 15 (1958). However, there is no indication that the residency requirement of Section 5 was intentionally eliminated.

In the West water and land are separate and ownership of land does not automatically give right to water use. This is reflected in the homestead laws where water rights are reserved from patents. See 43 U.S.C.A. § 661 as derived from 14 Stat. 253 and 16 Stat. 218. This explains why the patent and the water certificate were treated separately in Section 1 of the 1912 Act. The patent is a right to land—ownership in land. The certificate is evidence of a right to water subject to divestment for failure of application to beneficial use. See 43 U.S.C.A. § 372, 32 Stat. 390. However, the nature of the water right is not expressly delineated in reclamation law. The water right certificate describes the land upon which the water is to be used, the amount of water use allowed and aids in establishing priorities under state laws. Neither the reference to water rights in the 1902 Act, nor that in the 1912 Act make clear just what the user has, either before or after receiving the final water rights certificate. It is important to note, however, that reclamation laws are "designed to promote federal policies of permanent importance and not merely to secure an investment interest." II Sax, Waters and Water Rights, 118 (R. Clark ed. 1967).

That land and water are separate also helps explain why each is treated differently in Section 1 of the Act of 1912. The purpose of the Act of 1912 was to enable the settler to mortgage his property prior to final payment for the amount due for the water right. See Title for Homesteaders on Reclamation Projects, Senate Report No....