The highest rate of compensation that may be paid under the Classification Act is $9,000 per annum or $25 per day, subject to deduction required by existing law.

Therefore, it is my opinion that a new position or new positions may be established at an appropriate basic rate subject to the deduction provided by section 2, title 2 of the act of March 20, 1933, as amended, and that compensation therefor may be made from funds under the National Industrial Recovery Act.

Approved:

OSCAR L. CHAPMAN,

Assistant Secretary.

CONTRACT WITH CITY OF SAN DIEGO IN CONNECTION WITH ALLAMERICAN CANAL

Opinion, April 5, 1934

WATERS AND WATER RIGHTS-BOULDER CANYON PROJECT ACT-AUTHORITY OF SECRETARY OF THE INTERIOR.

Nowhere in the Boulder Canyon Project Act (45 Stat. 1057) is there any specific limitation upon the discretion of the Secretary of the Interior in determining the use to which the All-American Canal shall be put other than the specific direction that the water carried therein shall be for the reclamation of public lands and for other beneficial uses exclusively within the United States.

WATERS AND WATER RIGHTS-CONSTRUCTION OF STATUTES-BOULDER CANYON PROJECT ACT.

Use by the city of San Diego, California, of water obtained from the AllAmerican Canal, will be, in the language of the Boulder Canyon Project Act, a beneficial use and exclusively within the United States, and accordingly, a contract made by the Secretary of the Interior with the city of San Diego, whereby the carrying capacity of said canal is to be increased, the work to be performed by the United States with provision made for repayment of the cost by the city, is permissible under the terms of the said act. WATERS AND WATER RIGHTS-ALL-AMERICAN CANAL-BOULDER CANYON PROJECT Аст.

Authority to contract to deliver water from a canal to be constructed of necessity carries with it authority to contract for a canal capacity sufficient to carry the water to be delivered in addition to any other water to be carried, if said canal is to carry other water.

WATERS AND WATER RIGHTS-BOULDER CANYON PROJECT ACT-REIMBURSEMENT OF THE UNITED STATES.

Since the Boulder Canyon Project Act provides that reimbursement to the Government for outlay for the canal and appurtenances provided by the act shall be "in the manner provided in the Reclamation law," payment in advance by the city of San Diego is not required but, instead, the plan followed in the Reclamation Service, namely, payment without interest extending over a period not to exceed 40 years, is acceptable.

MARGOLD, Solicitor:

On February 15, 1933, a contract was made between the United States and the city of San Diego, California, whereby the United States agreed to store in the reservoir created by the Boulder Dam in the Colorado River, for the beneficial consumptive use of the city, 112,000 acre-feet of water per annum and to release the water from time to time as required by the city and deliver it at a point in the Colorado River immediately above the Imperial Dam.

On February 20, 1934, the city filed an application to have the United States construct for its benefit and at its cost, under the provisions of the Boulder Canyon Project Act (45 Stat. 1057), carrying capacity in the All-American Canal for 155 cubic second-feet of water. It is the desire of the city that the water, for which it contracted on February 15, 1933, be carried through that canal to its western terminus, a point from which the city can more easily transport the water to its ultimate destination.

You have asked whether, in my opinion, the Secretary of the Interior has authority to make the contract with the city of San Diego, for increased capacity in the All-American Canal, with a provision for the repayment of the cost of such additional construction in 40 annual installments without interest, or whether the contract must require the city to pay in advance the money necessary to cover the cost of the increased capacity in the canal.

It is my opinion that the terms of the Boulder Canyon Project Act, supra, give sufficient authority for the execution of this contract with a provision for repayment by the city in 40 annual installments without interest.

Nowhere in the act is there any specific limitation upon the discretion of the Secretary in determining the use to which the AllAmerican Canal shall be put other than the specific direction that the water carried therein shall be for the reclamation of public lands and other beneficial uses exclusively within the United States. Use of this water by the city of San Diego is a beneficial use and will be exclusively within the United States. In section 5 of the act it is provided:

That the Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe, to contract for the storage of water in said reservoir and for the delivéry thereof at such points on the river and on said canal as may be agreed upon for irrigation and domestic uses,

The reservoir there referred to is that created at the Boulder Dam, and the canal is the All-American Canal. It is my opinion that, under such statutory provisions, the Secretary of the Interior is fully authorized to enter into a contract with the city of San Diego for the delivery of the water from the Boulder Dam Reservoir, for which

it has already contracted, at any point on the All-American Canal. The western terminus of that canal is such a point.

The authority to contract for the delivery of the water on the canal must, of necessity, carry with it the authority to contract with the city for capacity in the canal sufficient to carry the water to be delivered in addition to any other water to be carried.

Such a situation was under consideration when, on December 1, 1932, the Secretary of the Interior entered into a contract with the Imperial Irrigation District, whereby the United States agreed to construct the Imperial Dam and the All-American Canal and appurtenant structures at a total cost to the district not to exceed $38,500,000, which is to be repaid to the United States by the district in not more than 40 annual installments. In Article 21 of that contract the United States expressly reserved the right to increase the capacity of the works and contract for such increased capacity with other agencies, each such agency to assume such proportion of the total cost of said works, to be used jointly by such agency and the district, as the Secretary of the Interior may determine to be equitable and just. In such case the district's financial obligation under the contract shall be adjusted accordingly. It was thus recognized by the administrative officers that contracts could be made by the United States with other agencies for enlargement of, and for an interest in, the irrigation works for use jointly with the Imperial Irrigation District, and that the cost to the district would be adjusted on a fair basis; and it was also provided that any agency thus contracting would be required to bear its proportionate share of the cost of operation and maintenance of the works.

Upon what terms is the Secretary authorized to contract for the payment by the city for that excess capacity in the canal?

Section 1 of the Boulder Canyon Project Act provides, among other things, for the delivery of stored water for reclamation of public lands and other beneficial uses exclusively within the United States, and the Secretary is authorized to construct, operate, and maintain a main canal (the All-American Canal) and appurtenant structures located entirely within the United States, connecting the Laguna Dam, or other suitable diversion dam, with the Imperial and Coachella Valleys in California, the expenditures for said main canal and appurtenant structures to be reimbursable as provided in the Reclamation law.

In subsection (b) of section 4 of the act there is the following provision:

Before any money is appropriated for the construction of said main canal and appurtenant structures to connect the Laguna Dam with the Imperial and Coachella Valleys in California, or any construction work is done upon said canal or contracted for, the Secretary of the Interior shall make provision

for revenues, by contract or otherwise, adequate in his judgment to insure payment of all expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law.

These provisions of the act indicate the general authority of the Secretary and also prescribe the manner in which he may contract for reimbursement of the funds expended to create the necessary capacity in the canal. The plan of reimbursement is to be that provided in the Reclamation law, namely, payment without interest extending over a period not to exceed 40 years.

There is no reason to suppose that Congress intended to place a municipality, such as the city of San Diego, in a position different from that of any other agency which might properly contract to take delivery of water at a point on the canal, or that Congress intended to deny to such a municipality the opportunity to make repayment, on its proportionate amount of the construction cost of the canal, over a 40-year period without interest. Nothing in the Boulder Canyon Project Act requires such a supposition; its terms are sufficiently broad to indicate precisely the contrary intent on the part of Congress.

That plan, which allows the city to make payment in 40 annual installments without interest, is similar to that provided by law in connection with the furnishing of water rights to towns on irrigation projects or in the immediate vicinity thereof. In section 4 of the act of April 16, 1906 (34 Stat. 116), it is provided:

That the Secretary of the Interior shall, in accordance with the provisions of the reclamation act, provide for water rights in amount he may deem necessary for the towns established as herein provided, and may enter into contract with the proper authorities of such towns, and other towns or cities on or in the immediate vicinity of irrigation projects, which shall have a water right from the same source as that of said project for the delivery of such water supply to some convenient point, and for the payment into the reclamation fund of charges for the same to be paid by such towns or cities, which charges shall not be less nor upon terms more favorable than those fixed by the Secretary of the Interior for the irrigation project from which the water is taken.

The act of February 25, 1920 (41 Stat. 451), is an authorization to the Secretary of the Interior to sell water from a Federal irrigation project system. It provides in part:

That the Secretary of the Interior, in connection with the operations under the reclamation law, is hereby authorized to enter into contract to supply water from any project irrigation system for other purposes than irrigation, upon such conditions of delivery, use, and payment as he may deem

proper:

It also provides certain limitations upon this grant of authority which give preferential rights to water service for the irrigation of lands on the project.

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The application by the city of San Diego does not call for delivery of water, as the city and county have previously purchased water from the United States, but asks for capacity in the All-American Canal so that it will be possible for the United States to convey the water purchased by them from storage in Boulder Reservoir from the Imperial Dam to the western terminus of the All-American Canal. To contract for construction of capacity in the All-American Canal, and for the repayment of cost as provided in the Reclamation law, would be to follow closely the plan provided by Congress for towns and cities where water can be delivered conveniently from an irrigation project.

As a result of these considerations, it is my opinion that the Secretary of the Interior can make a valid contract with the city of San Diego, California, under the terms of the Boulder Canyon Project Act, by which the United States will construct, for the benefit of the city, excess capacity throughout the entire length of the AllAmerican Canal for the carriage of 155 cubic feet per second of water, and that the contract may provide that repayment of the cost of such construction shall be made by the city of San Diego in accordance with the terms of the Reclamation law, namely, over a period not to exceed 40 years, without interest.

Approved:

HAROLD L. ICKES

Secretary of the Interior.

FISHING RIGHTS OF YAKIMA INDIANS AT CELILO FALLS,

OREGON

Opinion, April 5, 1934

INDIANS-YAKIMA TRIBES-FISHING AND GAME RIGHTS-AUTHORITY OF STATE AND FEDERAL GOVERNMENTS, RESPECTIVELY.

The power to preserve fish and game within its borders is inherent in the sovereignty of a State (citing Geer v. Connecticut, 161 U.S. 519; Ward v. Racehorse, 163 U.S. 504, 507).

INDIANS-RIGHTS OF STATES-FISHING RIGHTS.

The power of each State to regulate fishing in its rivers includes authority to restrict the devices and types of tackle which fishermen generally employ.

INDIANS-YAKIMA TRIBES-FISHING RIGHTS-CONSTRUCTION OF STATUTES. A regulation of fishing, imposed by a State, operative on all persons alike, reasonably adapted to the preservation of wild life in the waters of the State for the common benefit, and not in its intendment or operation a denial to a privileged Indian community of its right to fish, is not violative of a provision of a treaty with the Indians (see 12 Stat. 951; 45 Stat.