containing waters, the rights to which have vested or accrued, are subject to an easement sufficient to permit of the continued use of such waters. 56-387

While there may be some doubt as to whether authority exists under the act of Oct. 16, 1941 (55 Stat. 742), to permit the diversion and appropriation of some of the waters of the San Carlos Irrigation Project for the use of a corporation ordered to produce copper, authority is conferred by the act of June 3, 1916 (39 Stat. 166, 213), as reaffirmed and extended by section 9 of the Selective Training and Service Act of Sept. 16, 1940 (54 Stat. 885, 892). Condemnation is also available as a means of acquiring the needed water supply under 40 U.S.C. 257 and 258 and 50 U.S.C. 171.

The existence of rights under the provisions of section 2339, Revised Statutes, should be no bar to the perfection of a State school indemnity selection, the clear list issued thereupon being under section 2340, Revised Statutes (30 U.S.C. (1952 ed.) 52), subject to vested and accrued water rights recognized under section 2339, Revised Statutes. 59-15

Under section 2340, Revised Statutes, subsequent disposal or withdrawal of lands containing waters the rights to which have vested or accrued is subject to an easement sufficient to permit the continued use of the waters. 59-15

The Department of the Interior adheres to the position taken by the executive branch of the Government in the case of Nebraska v. Wyoming, 325 U.S. 589, concerning the question of the ownership and control of the unappropriated nonnavigable waters on the public domain. 60-83 Under section 10 of the Stock-Raising Homestead Act, a public water reserve must be kept open to public use. Any

enclosure of a public water reserve is a violation of the Unlawful Inclosures Act and, if accomplished by the holder of a grazing lease on the surrounding Federal range by an enclosure of the leased land, is also a violation of the terms of the grazing lease. 60-83

II. STATE LAWS

Subterranean percolating water in the public lands is the property of the Federal Government and when artificially developed is not subject to any State law governing the appropriation of water. 52-554

The control of the flow and the appropriation and use of water, where no Government interest is involved, is governed by the local laws and customs of the State in which the stream is located. 52-633

One may convey water down a natural stream across tracts of public land so long as his rights to appropriate and use such water are maintained in accordance with 52-634 the laws of the State affected.

The use of the beds of natural water courses for the conveyance of water appropriated in accordance with State laws is generally sanctioned so long as there is no interference with the rights of others. 52-634

A withdrawal for a public water reserve (see Executive order of Apr. 17, 1926, and regulations thereunder, in 51 L.D. 457) does not contemplate the withdrawal of tracts containing mere dry depressions or draws which do not, in their natural condition, furnish or retain a supply of water available for public use, and the owner of a right, obtained from the State to such water, acquires no color of title or exclusive possessory right to the subdivision upon which the water was appropriated and used, but, at most, merely an easement. 54-144

This Department has repeatedly decided that it is without jurisdiction to determine the question as to the right to water, that being a matter solely within the province of the State courts. Silver Lake Power & Irrigation Company v. City of Los Angeles (37 L.D. 152, 153) and cases there cited; and the remedy of the owner of such a water right lies in recourse thereto. 54-144

Congress, in sections 2339 and 2340 of the Revised Statutes, and various later acts, surrendered to the States the right to control the appropriation and use of the waters of nonnavigable streams on the public lands; but this general rule does not apply to reserved public lands unless the water can be diverted at a point not affected by the reservation or unless a right-of-way has been obtained in accordance with Federal laws providing for rights-of-way over certain classes of reservations and under prescribed conditions, there being a clear distinction between water rights and rights-of-way over land for the use of such waters.

55-371

The Desert Land Act, passed Mar. 3, 1877 (19 Stat. 377), left with each State the right to determine for itself to what extent the rule of appropriation or the common law rule in respect to riparian rights should obtain; does not bind or purport to bind the States to any policy; and simply recognizes and gives sanction, insofar as the United States and its future grantees are concerned, to the State and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation (California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142). 55-371

The Government, as riparian owner of lands in California, is recognized as entitled to such water as is needed for beneficial use, but the law of appropriation permits only such quantity as is beneficially used. 55-371

The right to the use of water from springs located on lands of the United States not withdrawn for public watering purposes may be acquired by use on riparian lands of the United States, or by appropriation under State laws, subject merely to prior vested rights. 55-372

Where the water from springs in the Death Valley National Monument does not flow beyond the confines of the reservation, the Government, as riparian owner, is sufficiently protected in the use thereof without appropriation under State laws; but where running streams are involved, as where water flows through the reservation and may be subject to appropriation and diversion, either above or below, it

may be advisable for the Government to make appropriation under State laws, in order that claims may be adjudicated and equitable division awarded and established. 55-372

It is now well settled that State laws govern with respect to the right to appropriate and use the nonnavigable waters within the State on private lands or on the unreserved public lands of the United States, and also as regards navigable waters, except where the powers of the Federal Government with respect to navigable streams would be interfered with (citing California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142). 55-378

Where wells are developed on public lands of the United States, the Government can protect the use thereof for governmental purposes, insofar as the use of the waters depends upon the use of the land for the storage or carriage of such waters, by refusing to grant rights-of-way for such purpose. But under the law of Utah, if the waters are in flux, either on the surface or under ground, they are subject to claim by the first appropriator thereof, for use on private land or on any public lands properly subject to such use. 55-378

No authority appears for the acquisition by the Federal Government of underground water rights in connection with wells on public lands of the United States in the State of Utah, except upon compliance with the water-right laws of the State of Utah. 55-379

The doctrine of appurtenancy of water rights to land was codified by the Nebraska Legislature in 1895 (Laws 1895, ch. 69). Quaere, whether this legislation could validly operate to preclude the assignment of a water right having an earlier priority under the State law.

56-149

A lien for local taxes assessed merely upon the interest of the property owner and subsequent in point of time to the lien of the United States under a water right application is inferior to the lien of the United States. 57-27

No purpose of the Executive order of Apr. 17, 1926, would be served by the withdrawal of a subdivison of public land con

taining a spring, although of the character contemplated by the withdrawal, if the right to use the waters is vested under State law in private parties. 59-15

Section 10 of the Stock-Raising Homestead Act authorizes the reservation not only of public land containing water holes and springs but of the unappropriated water in the springs and water holes. Consequently, where a water reserve has been created, the nonnavigable water thereon which was unappropriated at the time when the reserve was created is not subject to appropriation under State water laws, and any permit issued by a State for the appropriation of such waters is ineffective. 60-83

The law of Arizona regulating the withdrawal of underground water cannot be applied to Indians on Indian reservations in the State in the absence of Congressional legislation specifically making such law applicable.

61-209

WATER COMPACTS AND TREATIES

A provision in a contract for the division of the waters of Ahtanum Creek, entered into between the United States on behalf of the Indians on the Yakima Indian Reservation and the white landowners outside of the reservation, for the appointment of a watermaster on or before June 15 each year, contemplated that the apportionment of the waters was to be made only during the irrigation season, and not then until the watermaster had been appointed, but that his appointment could be made before that date, if desirable.

53-328

The department will not attempt to abrogate a contract entered into more than twenty years ago between the United States on behalf of the Indians on the Yakima Indian Reservation and the white landowners outside of the reservation under which more than 50 percent of the waters of Ahtanum Creek were appor

477

tioned to the latter during the irrigation season each year where the division was based upon beneficial use at the time the agreement was made and valuable rights have been acquired in reliance upon the terms of the contract, notwithstanding that the Secretary of the Interior may not have had authority at the time to bind the 53-328 Indians by such agreement.

By the terms of section 4(a) of the act of Dec. 21, 1928 (45 Stat. 1058), commonly known as the Boulder Canyon Act, it is provided that the State of California shall have, each year, for beneficial consumptive use, not to exceed 4,400,000 acre-feet of water from the lower basin of the Colorado River, in accordance with Article III (a) of the Colorado River Compact, and it is further provided that no person shall obtain said water from the Colorado River except by contract entered into with the Secretary of the Interior and approved by that official. Held, That the provisions of the act, considered in the light of the compact, must be interpreted as forbidding the Secretary from entering into a contract for the storage of water in the reservoir contemplated which could render impossible of fulfillment the allotment yearly to the State of California of 4,400,000 acre-feet of water. 54-593

WILDLIFE REFUGES AND PROJECTS

The waiver of damage clause in the contract made with the settlers owning lands in Klamath Drainage District does not permit the Federal Government to flood their lands for bird refuge purposes without just compensation as contemplated by the Constitution. 53-694

Section 9 of the Taylor Grazing Act provides that "the Secretary of the Interior shall provide, by suitable rules and regulations, for cooperation with local associations of stockmen, State land officials, and official State agencies engaged in conservation of propagation of wildlife interested in the use of the grazing districts." Held, That, construed in the light of its legislative history, the language, "interested in the use of the grazing districts", qualifies the first sentence of the section in its entirety, and not merely the portion relating to wildlife. 55-385

United States attorneys and marshals can apprehend and prosecute offenders of Federal game laws, including federally adopted State laws, upon military reservations which are under the exclusive jurisdiction of the United States. 60-60

United States game management agents and United States deputy game wardens are appointed with specific authority to enforce designated laws only, and they cannot take action with respect to the enforcement on military reservations of State wildlife conservation laws adopted as Federal laws under the provisions of the Assimilated Crimes Act (18 U.S.C. 468) or otherwise. 60-60

Violations by military personnel of wildlife conservation laws or regulations on military reservations, irrespective of the Assimilated Crimes Act (18 U.S.C. 468) can be prosecuted before courts-martial under Article of War 96 (10 U.S.C. 1568). 60-60

Violations of the Federal game laws by civilians on a military reservation over which the United States has exclusive jurisdiction, and which fall within the category of a petty offense (18 U.S.C. 541) may be prosecuted by military personnel before a proper United States commissioner.

60-60

Under section 2 of the act of Mar. 10, 1934, as amended by the act of Aug. 14,

The act of Jan. 25, 1927 (44 Stat. 1026), extending the grants of school sections in place to certain States to embrace lands mineral in character, had no application to lands within reservations existing when the act became effective. 52-489

To determine whether a tract of public land comes within the purview of E.O. No. 4262 of July 3, 1925, which withdrew from all forms of appropriation "all lands on the mainland within three miles of the coast in the States of Alabama, Florida, and Mississippi," measurement should be made from a point on the coast which is nearest to the tract involved. 52-572

Lands not in a producing field or under lease, but within an oil and gas withdrawal or reservation, may be entered under the enlarged homestead act, but not under the stock-raising homestead act.

52-621

Where lands are excluded from a national forest withdrawal and simultaneously included within a townsite withdrawal, the later withdrawal will attach immediately upon relinquishment or upon

reversion to the United States by forfeiture of lands which had been excepted from the operation of the first withdrawal because of prior valid appropriation.

53-65 Instructions of June 9, 1930, withdrawal of oil shale lands by E.O. No. 5327, Apr. 15, 1930 (Cir. No. 1220). 53-127

A withdrawal for a public water reserve does not contemplate the inclusion of a tract of land containing mere dry depressions or draws which do not, in their natural condition, furnish or retain a supply of water available for public use, and an order withholding such land from acquisition by a person who has, by his own efforts, provided artificial means for collecting flood waters thereon should be revoked. 53-210

Instructions of Apr. 18, 1931, recreational and grazing use of lands withdrawn for protection of watersheds in California under act of Mar. 4, 1931 (46 Stat. 1530). (Cir, Nos. 1247 and 1254.) 53-369

The act of June 25, 1910 (36 Stat. 855) authorizing the President to temporarily withdraw public lands for power sites, irrigation, classification, or other public purposes, and section 13 of another act of the same date authorizing the Secretary of the Interior to reserve lands within any Indian reservation valuable for power or reservoir sites or needed for use in connection with any irrigation project were intended to be separate and distinct as to the sphere of operation, the former relating exclusively to public lands, the latter to Indian lands.

53-680

A withdrawal of public lands for the purpose of reserving them for use as federally regulated grazing lands is a withdrawal for a public purpose, and is analogous to a withdrawal under section 10 of the act of Dec. 29, 1916 (39 Stat. 862), to provide for stock-raising homesteads.

54-353

Persons whose use of public lands rests merely upon the sufferance of the United States do not come within the purview of the exception contained in an order of withdrawal that it shall be subject "to all valid existing rights", the sole "right" of those so using the lands being to graze stock thereon at the sufferance of the United States. 54-353

The provision in section 1 of the act of June 28, 1934, limiting to 80 million acres the aggregate area of vacant, unappropriated, and unreserved lands which may be placed in grazing districts under said act does not apply to the area which may be withdrawn by virtue of notice. 55-89

Congress, in sections 2339 and 2340 of the Revised Statutes, and various later acts, surrendered to the States the right to control the appropriation and use of the waters of nonnavigable streams on the public lands; but this general rule does not apply to reserved public lands unless the water can be diverted at a point not affected by the reservation or unless a right-of-way has been obtained in accordance with Federal laws providing for rights-of-way over certain classes of reservations and under prescribed conditions, there being a clear distinction between water rights and rights-of-way over land for the use of such waters. 55-371

Upon the assumption that without waiver of the drainage liens the Caraway lands, although rendered unfit for occupancy through natural causes, could not be withdrawn from homestead entry and made subject to classification as to suitability therefor under section 7 of the Taylor Grazing Act, question was raised whether under the Arkansas Land Policy Act, No. 331, of Mar. 16, 1939, the State Land Commissioner had authority to waive or cancel the Caraway liens. Held, 1. That the act probably relates only to State-owned lands and does not apply to the delinquent United States lands, which cannot become State-owned through forfeiture for delinquent charges. 2. That in the absence of any State construction of the Land Policy Act as to such authority to waive or cancel the liens, the Caraway Lands cannot be regarded as falling under the jurisdiction of the State Land Commissioner for the purpose of taking such action. 3. That the liens continue unimpaired, subject to enforcement as prescribed by the Caraway Act.

58-170

One who takes possession of unreserved, unsurveyed desert land, who begins to reclaim it, and who is continuing his reclamation operations at the date of the inclusion