The lands are located along the lower Colorado River. Some of the occupant-claimants or their predecessors in title, trace title back for decades, and for decades they have lived on the land, made substantial improvements and paid State and local taxes on it. BASIC PROBLEM The problem arises over whether the subject lands are "accreted," or were created by "avulsion." Accretion is the gradual accumulation of land by natural causes, such as the depositing of silt or the gradual withdrawal of a river from a section of its banks. In such a case, the accreted land attaches to the adjoining upland and becomes the property of the upland owner. The occupant-claimants of the subject tracts insist that their lands are accreted lands, that is, that their tracts were formed by accretion and attached to the adjoining State patented uplands. Avulsion is the sudden and perceptible shifting of the course or location of a river or body of water. It may be natural or artificial. In such a case, title to the avulsed land is not lost by its owner at the time of the occurrence of the avulsion. The Federal Government contends that the subject lands were created by an abrupt change in the course of the Colorado resulting from manmade cuts and channels in 1924. Thus, the lands have remained attached to and a part of a federally withdrawn area, legally speaking. COMMITTEE POSITION The committee held hearings and gave extensive consideration to bills to deal with the problem in the 89th and 90th Congresses. It tried to solve it through different approaches, only to have its efforts rejected by the executive branch. Since there is dispute as to the basic facts, the committee concurs with Senator Murphy that the matter should be referred to the Chief Commissioner of the Court of Claims for investigation and report. Mr. JACKSON, from the Committee on Interior and Insular Affairs, submitted the following REPORT [To accompany S. 2062] The Committee on Interior and Insular Affairs, to which was referred the bill (S. 2062) to provide for the differentiation between private and public ownership of lands in the administration of the acreage limitation provisions of Federal reclamation law, and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that the bill (as amended) do pass. Committee action in ordering the measure, as amended, reported favorably was unanimous. The committee also considered S. 2072, sponsored by Senators Church and Jordan of Idaho, the provisions of which are identical, in substance, to section 1 of S. 2062. PURPOSE OF BILL The purpose of S. 2062 is to clarify the acreage limitation provisions of the Federal reclamation laws with respect to lands owned by a State or local governmental entity or subdivision. The basic reclamation law, dating back to the Reclamation Act of 1902, provides that no landowner in a Federal reclamation project may receive water for lands in excess of 160 acres for each individual. An administrative interpretation of this provision by the then Solicitor of the Department of the Interior, dated January 23, 1967, held in pertinent part: In summary, it is the opinion of this Department that these basic (excess lands) provisions of reclamation law apply to any and all landowners who have lands within a reclamation project. The language "in private ownership" is properly read to mean any non-Federal ownership. This includes the * * * Such an interpretation greatly hampers the States in fulfillment of certain State functions. An example is the State of Idaho. The University of Idaho conducts a State experimental farm at Caldwell which has in it 267 acres of land irrigated from a Federal project in excess of the limitation, and the State school and hospital for the mentally retarded at Nampa has 384 such acres. The effectiveness of both of the State institutions will be substantially reduced if they are forced to reduce their lands to 160 acres, as the Department of the Interior ruling would require. EXPLANATION OF PROVISIONS S. 2062 would rectify such a situation and clarify other State uses of their irrigated lands. Section I would exempt from the acreage limitation State lands which are operated for nonprofit, public purposes. Examples are hospital and prison farms and university agricultural stations. Section 2 would permit a State to sign recordable contracts to sell excess lands within 10 years, but at present rather than dry land value. The laws of many States require lands to be sold at public auction to the highest bidder. The State lands could receive water in the interim. Section 3 would permit a State to retain ownership of excess lands and lease them for revenue purposes to farmers. Each lessee, however, would be subject to the same acreage limitation as a private landowner. The Department of the Interior recommended that section 3 be deleted from the bill. The committee, however, is convinced that this provision is highly desirable for providing income from State lands for public purposes. In many States income from such lands is dedicated in large part to education. BASIC LEGAL BACKGROUND The provisions of S. 2062 will be clearer if the basic legal background is understood. The requirements of the excess land law as administered are set forth in section 46 of the Omnibus Adjustment Act (act of May 25, 1926; 44 Stat. 636, 650; found in 43 U.S.C. 423e). This statute provides in pertinent part: (1) All land in private ownership in excess of 160 irrigable acres (excess land) must be appraised in a manner to be prescribed by the Secretary. (2) The appraisal shall determine the land's value without reference to the reclamation project (in essence its value as dry land rather than as irrigated or potentially irrigated land). (3) No excess land may receive project water unless its owners execute a valid recordable contract agreeing to sell the land at a price not to exceed the appraisal price. (4) Until half the construction charges are paid no sale of excess lands carries the right to receive water unless the price is approved by the Secretary. S. Rept. 91-499 (5) Upon proof of fraudulent representation as to the true consideration involved in such a sale the Secretary is authorized to cancel the water right attaching to the land involved. As stated, the Interior Department has held that "private ownership" means all non-Federal land. Thus, lands on reclamation projects that are State, municipal, or owned by other local public entities (such as universities and hospitals) must dispose of all of their irrigated lands in excess of 160 acres. COMMITTEE RECOMMENDATION The committee, most of whose members come from reclamation States, is convinced that S. 2062, as reported, does not violate in any way the letter and the spirit of the reclamation law. Rather the bill clarifies the law for its better administration. At the same time, enactment will enable the States better to fulfill their public functions. Therefore the committee recommends prompt approval by the Congress of S. 2062. EXECUTIVE AGENCY REPORTS The reports of the Department of the Interior and the Bureau of the Budget are set forth in full below. As to the amendments recommended by the Interior Department, the committee adopted the change set forth for section 2. It did not, however, delete section 3, as explained above. U.S. DEPARTMENT OF THE INTERIOR, Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular Affairs, DEAR MR. CHAIRMAN: This is in response to your request for the views of this Department on S. 2062, a bill to provide for the differentiation between private and public ownership of lands in the administration of the acreage limitation provisions of Federal reclamation law, and for other purposes, and S. 2072, a similar bill to provide for the exemption of certain State lands from the application of the acreage limitation provisions of Federal reclamation laws. S. 2072, which is identical in substance to section 1 of S. 2062, provides that the provisions of Federal reclamation laws which limit the acreage of irrigable land which may receive irrigation benefits from, through, or by means of Federal reclamation works shall not be applicable to lands owned by States, political subdivisions, and agencies thereof, and farmed in direct furtherance of a public, but nonrevenue-raising, function, as determined by the Secretary of the Interior. Section 2 of S. 2062 would permit State and local bodies to execute recordable contracts for the sale of irrigable excess lands within 10 years without price limitation and to receive water during such period. Section 3 would permit State and local bodies to lease their excess lands for revenue purposes but each lessee would be subject to existing acreage limitations. S. Rept. 91-499 The acreage limitation provisions found in reclamation law have as their objective the encouragement of farming on family-size farms in tracts limited to not more than 160 irrigable acres per individual owner. It has been the concern, both of this Department and the Congress, that the benefits of Federal reclamation projects not inure to a few large landowners. The acreage limitation meets this concern by requiring that ownership of land receiving project water be in family-size units. Repayment by the water users of the costs of reclamation projects allocated to irrigation is limited by their ability to pay and is interestfree, spread over a long period of years, and in some cases assisted by the application of power revenues. It has been the long-established policy of the Congress that such financial assistance is justified by the resulting economic and social benefits to the Nation. The matter of the applicability of the excess land laws to lands owned by the States has arisen several times in the past. The Department of the Interior has been specific in declaring that the excess lands provisions of reclamation law apply to all nonFederal owners. In a letter to the Assistant Attorney General, Department of Justice, dated January 23, 1967, the Solicitor of this Department stated: In summary, it is the opinion of this Department that these basic (excess lands) provisions of reclamation law apply to any and all landowners who have lands within a reclamation project. The language "in private ownership" is properly read to mean any non-Federal ownership. This includes the States. Allowing individual States to maintain large landholdings would be inconsistent with the congressional desire to diversify ownership and to encourage family farming *** Therefore, it would be inconsistent with the clearly expressed intention of Congress to allow the States to avoid the provisions of the excess land laws. Without mitigating circumstances being present, there seems to be no reason why irrigated farming should be carried out on excess acreage owned by the States or their subdividisons. There are instances of State-owned lands located within reclamation projects which are not farmed primarily to raise revenue. Among these might be hospital and prison farms, State-operated welfare institutions, or lands used for agricultural research by public educational institutions. Often such lands are leased to private individuals who carry on the actual farming. However, the principal reason for the cultivation of these lands lies not in the raising of revenue for the lessee or the owner of the lands. Rather, public benefits are afforded by such use. To supply reclamation project water to excess lands devoted to these sorts of uses would not be contrary to the policy behind the excess lands provisions of reclamation law. S. 2072 is limited to situations involving institutional and public service usages not of a revenue-raising nature. S. 2062, however, permits exception to the excess land laws where the usage is "primarily in the direct furtherance of a non-revenue-producing public function," as determined by the Secretary of the Interior. We believe that the intent of the language in S. 2062 is the same as that expressed in S. 2072, but would not object to express language S. Rept. 91-499 |