That is to say, as recently as 1956 Congress saw no reason in a northerly climate to alter the figure set by current administrative interpretation of the excess land provision.

The historic conception of national interest as promoted by communities founded on family-size farms, and equitable distribution of national resources, that is embodied in the Pre-emption and Homestead Acts and in the excess land provision, is not outmoded.

The last time a full-scale effort was made to remove the excess land provision from Central Valley a small city editor went from the valley to Washington to testify from his own experience with large-scale and family-farm communities that "the family farm is more conducive to democratic life than corporation farming is"—Hearings on Senate bill 912 (op. cit., p. 603).

A few months ago an eastern farm journal editor remarked upon his return from a trip West :

You would think, woul you, that farming areas of the State would have fine farm homes, schools, hospitals, and churches? We thought so, too. But as we toured California's three richest farming counties, we were amazed that * * * so little of the immense wealth that has been wrested from California's land has been converted into health, happy rural living. Efficiency in farming carries a high prace tag—William D. Poe, Progressive Farmer, December 1957, page 31.

A year ago Senator Douglas said the issue is whether, in agriculture, "both economic and political power are to be concentrated among the few, or whether it is to be diffused among the many.” He asked whether it is to be diffused among the many.” He asked whether “we wish to try to hold on to the smaller, self-sufficing farms, which produce independence of thought, because men have their living under their feet”—(103 Congressional Record 6735, daily edition, May 23, 1957); see also editorial “What is Freedom?,” Dinuba Sentinel, January 17, 1950.

Questions of this kind that go to the heart of the quality and stability of popular government in this Nation are never outmoded.

An extraordinary effort has been made for about 15 years to divert attention from the central problem, viz, under what conditions should the Government furnish subsidized water to private landowners ?

Questions are asked about how large a man's holdings should be; what if he has some water, but not enough, and wants supplemental water; what if he has water that comes at the wrong time, and wants Government help to regulate it so it will come when he wants it; what about the man with 260 acres; isn't the Government taking something away from private landowners that really belong to them?

These questions confuse people. They furnish formulas that, if adopted, destroy the principle of equitable distribution of water and benefits; but they do not offer reasons why principle should be scrapped.

The excess land law does not tell people how large their landholdings should be, but only how much subsidized water they can have if they choose to ask for it.

The law holds, and always has held, by the intention of the framers of reclamation, that the Government is prepared to meet the varying needs of landowners by providing supplemental or complete supplies of water, or by regulating, storing, or carrying water, as required, but always on the same conditions. The law governing expenditure of public funds for private benefit applies equally, whether a man owns 260 acres or 26,000.

The last question: whether the Government is taking property away from private landowners by placing a ceiling on the amount of subsidized water it will provide, is involved in the Ivanhoe case now before the United States Supreme Court; my own views are expressed in 10 Standard Law Review 477.

If the Court sustains the California majority opinion, Congress will face a question whether to appropriate funds for reclamation in California, and administrators will face a question whether, if funds are appropriated, they can spend them legally.

Popular, and even congressional discussions now are permeated with consideration of the alleged plight of the landholder who wants more subsidized water than the law allows him.

This was not always the point of emphasis. When efforts were being made to persuade the 57th Congress to consent to Federal aid for reclamation, the stress was on providing for those who wanted opportunity to farm. There were no State boundaries limiting beneficiaries.

Congressman Oscar W. Underwood of Alabama gave his support to Federal aid, saying: “The farm boys in the East want farms of their own. It-reclamation-gives them a place where they can go and build homes” (S. Doc. 446, 57th Cong., 1st sess., p. 21).

Supporting an appeal for Federal aid to reclamation in Central Valley in 1937, Congressman Bertrand Gearhart of California spoke in the same vein:

When we ask for governmental assistance in the development of this valley, we are asking not so much for the improvement of California or Californians alone, as for its development for the benefit of all the people of the United States, for the tens of thousands of people, yes, for the hundreds of thousands of people from all over the Union who are coming to California to establish their homes in its great Central Valley (81st Congressional Record 6704).

It would be well, and in the spirit of the Nation's historic policy, to balance consideration of hardships, if any, to landowners who want more than the 320 acres of water the law allows them, with consideration for those who may lose opportunity by the weakening or destruction of the excess land provision.

Since Congress has been unwilling to reject, in so many words, a policy of widespread distribution of benefits from Federal reclamation, Why is there so much apprehension now of its imminent destruction?

The answer to this question lies first in what Senator Douglas calls “piecemeal abandonment," i. e., a succession of project exemptions beginning in 1938. Proposed originally as appropriate exceptions to principle, these exemptions later are cited as "precedents" for more exemptions, and claimed to be “preserving the principle of acreage limitation of the reclamation law (S. Rept. No. 1829, 84th Cong., 2d sess., series 11887, p. 7).

Possibly a mortician might be persuaded that doing to death a principle by eliminating its application is “preservation,” but I doubt whether thoughtful citizens would agree, after studying the record carefully.

The difficulty lies deep. Those whose interests are on the side of preserving the law are scattered over the United States; most of them are probably unaware of the opportunity the law is intended to provide them.

Their voices are not heard as a group, protecting their special interests. Direct beneficiaries of relaxation or abandonment of the law, on the contrary, are well aware of their interests, are localized, and frequently possessed of substantial political and economic influence in their communities.

The balance between such direct interest on one hand, and national principle on the other, is precarious.

Newspapers tend to treat project exemptions as local rather than national issues. People generally are uninformed that national principle is at stake; sometimes one wonders how generally aware Members of Congress are of this, absorbed as they are with so many pressing matters.

There is no remedy for this unequal situation, except as the Congress itself is willing to apply it, and as the American people are better informed, case by case, of the meaning of proposed actions.

Congress cannot divest itself of responsibility by assigning it to administrators. That would be the virtual end of national policy, and should be recognized as such.

Administrators are not lawmakers. They are far less able than Congress to balance principle and general interest against special interest. They are too often unsympathetic to the laws they administer, too often exposed to competition from other Government agencies, and too readily made targets of pressure to warp their administrative actions.

The Senator has referred to one of the principal examples of this, namely, the Straus rider, in which the administrators stood up very stanchly, but I think the lesson might have been learned by others who had less fortitude than they.

Senator ANDERSON. But the fact completely disproves your statement.

Commissioner Straus was not unsympathetic to the law he was asked to administer, he was exposed to some competition from other agencies, he was made a target of pressure to warp his administrative action, and he refused to warp it. This ought to give you some comfort rather than discomfort.

Mr. TAYLOR. Mr. Straus' and Mr. Boke's behavior under pressure gives me very much comfort. They are exceptional men. I think the lesson may not have been lost on others, however, and I think you would not say that disproves, if I had not passed over so rapidly a very long record of administrators.

Senator in view of some of your earlier remarks and your experience as an administrator of one of the great departments of this Government, I would like to ask you not to construe my analytical and critical remarks of certain administrators as charges that they are violating their oaths of office. I do not mean that.

I do mean that the bend that occurs under pressure becomes of record and have documented that in part in the Yale Journal article, which you so kindly inserted in the record.

We must remember that administrators are not lawmakers and the pressures are exerted very unequally as I detail in the statement in the pages we have just gone through.

Senator ANDERSON. I recognize the validity of your point that if it can be handled by law it is much better than putting it where the officer has a discretionary choice.


Mr. Taylor. That is right.

Senator ANDERSON. In my own particular case, we received in the Department of Agriculture, at one time when I happened to be over there, a great many applications for oil leases on forest lands. I solved the problem very simply. I wrote the President of the United States and asked him to issue an order transferring the administration of this to the Department of Interior. It was their business, it was not mine. They had standards already established and regulations established whereby they were able to make these people come in and do it properly.

I had lying in my desk an application for a lease that would have given some extremely valuable land to a man on the basis of a few cents an acre for 20 years. I do believe that it is better to have these tied down if at all possible.

Mr. TAYLOR. I agree with you entirely on that point, Senator.

To say this is not to make partisan charges, for the difficulty is deeper. As long ago as 1885, in similar circumstances, a commissioner of the General Land Office said of his predecessors thatthe prevailing idea running through this office and those subordinate to it was that the Government had no distinctive right to be considered and no special interests to protect. * * * I am satisfied that thousands of claims without foundation in law or equity, involving millions of acres of public land, have been annually passed to patent upon the single proposition that nobody but the Government had any adverse interest (Annual Report Commissioner General, Land Office, 1885, pp. 3, 4). [Emphasis in original.]

Administration of the excess lands provision in face of opposition from some of those to whom it applies has been sufficiently lax so that spokesmen for prospective beneficiaries have suggested that in some way it is unfair to them not to repeal the law altogether.

One spokesman, examining several alternative solutions” possibly acceptable to large land holders, rejected these in favor of the certain and permanent relief of a congressional exemption, saying:

Another procedure might be to proceed under existing laws, include excess land provisions in repayment contracts and assume that they would not be enforced. As previously indicated enforcement has been lax or possibly entirely missing on some past projects. On some other projects excess landowners have been allowed to continue farming the excess areas as no purchasers at the excess land terms have been found. This would not be a safe solution here. Land-owners could not rely on continued future nonenforcement (hearings before Senate Subcommittee on Irrigation and Reclamation, 78th Cong., 20 Sess., on S. Res. 295, p. 363).

On two important rivers in California, no contracts of repayment have been executed, although the dams constructed by the Army engineers were completed in 1954 (Comptroller General of the United States, audit report to the Congress of the United States, Central Valley Basin, water resources development program, Bureau of Reclamation, Department of the Interior and Corps of Engineers civil functions, Department of the Army for the fiscal year ended June 30, 1956, December 11, 1957, pp. 33, 34).

The present Secretary of the Interior declined, in scathing words, to sign a contract negotiated by a predecessor, as destructive of the purpose of reclamation law, but he has authorized new negotiations stipulating that, full and final payment of the obligations of a district to the Federal Government ends the applicability of the acreage limitations (letter from Secretary Seaton to Philip A. Gordon, dated July 12, 1957).

In my considered opinion, this interpretation subverts reclamation law and violates its terms; my views are documented in 64 Yale Law Journal 477. I hope the Department of the Interior will reexamine and decide to preserve the law rather than contribute to its destruction.

The exposure of one water development agency to competition from another, and its destructive effect on administration of national policy, has been analyzed and documented well by the Hoover Commission of 1949 (Arthur A. Maass, The Kings River Project in the Basin of the Great Central Valley-A Case Study, Commission on Organization of the Executive Branch of the Government, Task Force Report on Natural Resources, app. L, January 1949, app. VII).

The recommendation of the Hoover Commission of 1949, that the Army engineers and Bureau of Reclamation be consolidated as a single agency within the Department of the Interior, in order “to put an end to the chaotic administration machinery” for water resource development, is pertinent (Commission on Organization of the Executive Branch of the Government. A report to Congress, USDI, March 1949, pp. 56, 57).

Bureaus find the support of interested groups useful in obtaining congressional appropriations, and doubtless administrators know that staunch adherence to policy sometimes invites a lack of support or even attack at such times, by interests opposed to the law they administer. This has been true notably of the excess land provision, administered by the Bureau of Reclamation.

A classic example of the vulnerability of administrators to pressure, even congressional pressure, is the Straus-Boke rider of 1948. These two officials were without salary for five months, uncertain whether they would ever be paid. The President, regretting his inability to veto the rider item in the appropriation bill, attributed the attack on these officials in part to their support of "the 160-acre law which assures that the western lands reclaimed at public expense shall be used for the development of family-size farms" (64 Yale Law Journal 501-506).

A new Congress restored salaries, but the pressure had been exerted and its purpose of weakening the administrators' adherence to policy was generally understood.

Only Congress can fully protect administrators attempting to enforce the letter of the law to the best of their ability. Only Congress can insist that if its statutes say one thing, their interpreters, shall not usurp congressional authority by saying another.

Although Congress cannot divest itself of responsibility for policy by letting administrators make free with interpretation, Congress can usefully call on administrators to inform and advise it on the decisions that Congress must make.

Congress would do well to require the Interior Department to furnish information, before making final plans and seeking authorization, whenever water for 320 acres will not suffice to support a farm family properly. Lifting the water limitation on projects by removing some of the criteria of project feasibility tends to turn reclamation into pork barrel. How poor is the land on which the United States should spend its substance to provide water?

Congress also would do well to require information from the Interior Department, prior to project authorization, of the names of bene

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