Chairman, Subcommittee on Irrigation and Reclamation, United States Senate, Washington, D. C. DEAR SENATOR ANDERSON: This is in response to your request at the subcommittee hearings held on April 30 and May 1, concerning certain questions of excess land limitations on Federal reclamation projects. With respect to the joint holding of property by a husband and wife, the matter of community property under California law was considered by the Solicitor in an opinion dated August 21, 1945, a copy of which is enclosed. Your attention is invited to the penultimate paragraph of the opinion. The eligibility to receive water for 160 acres of irrigable land in the separate ownerships of a husband and wife being basic, the effect of this analysis in the opinion is that the details of the ownership by a husband and wife need not be examined to permit these results. Concerning conveyance by an excess-land owner to children in the family, we enclose a copy of Administrative Letter 125, Bureau of Reclamation, dated December 19, 1945. This distributed a copy of extemporaneous remarks made by Commissioner Bashore at a National Reclamation Association meeting in which he indicated acceptance by the Bureau of the principle of conveyance to members of the family. While those remarks had no formal legal review, they were cited in a letter to Senator O'Mahoney on December 29, 1948, from the Commissioner. That letter was approved by the Chief Counsel of the Bureau, and a copy is attached for your information. Pertinent to your inquiry is the following paragraph of that letter: "2. A landowner may deed his excess acreage to one of his children, or anyone else for that matter, and arrange to operate the alienated property with his own as one unit, provided he has divested himself of ownership in good faith and the child or other recipient of the property receives the full benefits of the operation of his own acreage." A much earlier reference to the matter of conveyance to children appears in advice from the Acting Secretary to the Director of the Geological Survey under date of May 21, 1904. This is reported in volume 32 of Land Decisions of the Department at page 647. The rule expressed was that an excess landowner could effectively convey an absolute estate to a child who was competent, or to a trustee for a child not competent to take title. The view expressed to Senator O'Mahoney in 1948 is, we believe, entirely consistent with the principle of the 1904 ruling, as the commitments required of a water-right applicant were not involved in the subject matter on which reply was made to the Senator. The bona fides and absolute character of the conveyance would, of course, need to be determined in each case. Sincerely yours, FLOYD E. DOMINY, Associate Commissioner. 211 DEPARTMENT OF THE INTERIOR, Administrative letter 125 BUREAU OF RECLAMATION, Washington, D. C., December 19, 1945. To: Regional directors, branch directors, regional counsel, and staff members. Subject: Remarks by former Commissioner H. W. Bashore to the National Reclamation Association on November 14, 1945. 1. Every member on the staff of the Bureau of Reclamation will be interested in the extemporaneous remarks made at the November convention of the National Reclamation Association in Denver by Harry W. Bashore on the excess-land question, a transcript of which is attached. A copy of the comment sent to Mr. Bashore by the Under Secretary of the Department of the Interior is also attached. Memorandum for Commissioner Bashore. MICHAEL W. STRAUS. DEPARTMENT OF THE INTERIOR, I want to thank and compliment you for the extemporaneous remarks which you made in Denver on November 14 on the excess-land question, a transcript of which is attached to your memorandum of November 30. It was a good, eloquent statement of a sound position on a fundamental issue. ABE FORTAS, Under Secretary. REMARKS OF FORMER COMMISSIONER BASHORE Mr. BASHORE. Thank you, Mr. Chairman. I recognize that a mere engineer is somewhat at a disadvantage in attempting to argue this question with a couple of highly competent speakers like Judge Stone and Mr. Jertberg. However, I have some decided opinions about this, and I am going to lay them on the line, and it makes no difference whether you agree with me or not or whether you want to criticize. That is O. K.; if you want to condemn, that is all right; it doesn't make any difference, but I think it is my duty, as long as I am occupying the position of Commissioner of Reclamation, to talk to you very briefly about this important subject. Now, then, the excess-land problem is not a problem in all States. Let's narrow this thing down to what we are talking about. I venture to say in the State of Utah it is not a problem at all as to the 160 acres. The problem is in reverse in the State of Utah. The Mormon pioneers held onto their land until the problem in the State of Utah is that the holdings are too small. It is not a problem of all projects in a State where the problem may exist. That narrows it down some more. Furthermore, it is not a problem of all farmers on a project where you have the problem to consider. That narrows it down still more. Now, what are we talking about then, really? Judge Stone says he doesn't know what the reclamation law means. Mr. Jertberg says it is very confusing, but I will say to you that it has taken 43 years to develop those reclamation laws. I believe I have a fair understanding of them, for a layman. Mention was made that a man had to live on the land. If you look at the 1926 act you will have some guidance on that. The Bureau of Reclamation and the Department of Interior do not consider that residence on private land is a requirement of law. (See GLO Circular No. 716 of August 11, 1920.) Now, it is very well to get in this meeting and whoop it up about getting all this development in the West. We are going to build this project, and we are going to build that project, and the first thing you know if the excess-land thing isn't straightened out we won't have any projects to build. You don't need to worry about that; there are plenty of projects that can use up all the money where you don't need to worry about the excess-land proposition. I want to say, further, that I have had some experience before these Appropriations Committees in the Congress and, when we go before those committees, we are subjected to a very expert cross-examination, which is very proper. When we go before those committees, we have to explain the proposition to them; we have to justify it and, after they get through with us and we furnished all the justification, then the matter rests with the members of the committee, and they must handle it on the floor and they must defend it and, if we don't give them a defense, how can we expect them to defend it? Now, one of the important defenses of reclamation is the fact that throughout its history we have clung to the idea that we are making these developments for family farms, great opportunities for families. Now, let's look into that a minute. I have heard some terrible sob stories about how the Government is going to come in and break up all these holdings. Here is an old man and lady. They have 5 or 6 children, or any number you want to mention, and we will assume they are in a supplemental water project. Now, what can they do, under the reclamation law? Well, they can give each one of the kids 40 acres, or 160 acres, or whatever they want, and be legally correct and, I say, morally correct, because there is absolutely nothing wrong with that; they may be veterans, also, of World War II. [Applause.] Their boys and girls that are raised up on those farms are entitled to have a farm if they want to give it to them. It might be a good way for them to start on their own under the parents' supervision, and it is always possible that when water charges accrue there is not so great a desire to pay water charges on excess lands. Now, that is possible. What are we talking about? What are we shedding those crocodile tears about? We are talking about corporate farming. We are basing this whole discussion on the necessity to meet the situation to protect corporate farming. Now, don't misunderstand me. I am not a Communist or Socialist, but I do believe that we should be concerned about family farming. That it is the farm that we are concerned about on reclamation projects, and our laws are based on that idea, and my opinion is that we should approach this subject carefully. And there is another reason why-there is a decided sentiment growing in the Congress today against the use of money from the general fund for making these developments in the Western States without interest. One of the very intelligent, sharp men on our Appropriation Committee has brought the point out forcefully, and he is not satisfied that it is proper for the farmers in the State of Ohio or Indiana to pay taxes to provide interest-free money to make developments in the western country to produce low power rates and to produce low rates for irrigation water out of the general fund, interest-free money. Now, as long as we were operating on the reclamation fund, it seemed to be the general sentiment that these revenues that go into the reclamation fund are from western resources, and why not let them have it? And we went along all right, but we are now talking about projects of great magnitude, and I am telling you we need all of the arguments that we can get on these appropriations. It is a difficult problem. They don't grow on the bushes, and you have to justify them, and it requires all of the ingenuity and ability that the people in the Bureau of Reclamation and your Senators and your Congressmen have in order to get these appropriations approved. Don't forget this. You're not strong in the House of Representatives. Your strength is in the Senate, and you have 34 Senators, but remember that appropriations originate in the House. You just haven't got the political muscle to put those things over unless you can cling to the idea of the family farm. Now, I will admit that the trend in farm operations is toward large operations. I don't think that we need to go into that here. Large operations are even permissible under the reclamation law, if owners complying with the law want to combine in management for efficiency. Reference was made by either Judge Stone or Mr. Jertberg that these State laws will not permit this or that or the other. Aren't they possible of amendment or change? In my mind, they have been amended and changed years ago to permit cooperation under the reclamation laws, and I think many of you will agree with me. Central Arizona is talking about bringing in water from the Colorado River, and why? Because they are overdrawn on the underground water supply, and there has been no code to control it. And I want to say to you the Federal Government should never bring any water into the State of Arizona until the State provides for control, for that is the end of the water for Arizona, and the State, in its own selfish interest, should provide a water code. And I am saying there is nothing untouchable about the Bureau of Reclamation laws. They have been amended many times to facilitate cooperation with the States. [Applause.] APPLICATION OF THE EXCESS-LAND PROVISIONS OF THE FEDERAL RECLAMATION LAWS TO COMMUNITY-PROPERTY STATES Memorandum opinion, August 21, 1945 OF FEDERAL RECLAMATION LAWS-ADMINISTRATIVE INTERPRETATION-APPLICATION EXCESS-LAND PROVISIONS OF FEDERAL RECLAMATION LAWS TO COMMUNITY-PROPERTY STATES What constitutes a "private landowner" or "owner of private lands" as these terms are used in the excess-land provisions of the Federal reclamation laws is to be determined from a proper construction of these laws and not from technical definition of such terms, especially in view of the purpose of the Federal reclamation laws and the lack of precise definition of the terms in the Federal reclamation laws. Neither the Federal reclamation laws nor the State laws defining a wife's interest in community property forbid the holding of 320 acres of irrigable land in community ownership, and an administrative determination that 320 acres of irrigable land can be held in community ownership is a reasonable construction of the excess-land provisions of the Federal reclamation laws. UNITED STATES DEPARTMENT OF THE INTERIOR, OFFICE OF THE SOLICITOR, Washington, D. C., August 21, 1945. Memorandum for the Commissioner, Bureau of Reclamation. Reference is made to your memorandum of July 11 submitting an informal opinion on the question of the legal effect of the community property laws of the State of California on the excess land provisions of the Federal reclamation laws, and requesting my consideration thereof. It appears from your memoradum that the Bureau of Reclamation has not considered a holding of 320 acres of irrigable land in community ownership a violation of the excess land provisions of the reclamation laws, which prohibit the sale of a right to the use of water for land in private ownership for a tract in excess of 160 acres to any one landowner. Presumably, the Bureau's view is based on the theory that a wife's interest in community property is such as to constitute her a "landowner" within the meaning of the reclamation laws. The position is taken in the informal opinion, however, that in California, prior to the passage of section 161a of the civil code, the interest of the wife in community property was an expectancy, rather than "owner" and, therefore, a different application of the excess land provisions should be made with relation to community property obtained before and after the enactment of section 161a; this is, before July 29, 1927, the date of the passage of section 161a, the wife not being an "owner" of the community property, the husband should be charged with the total irrigable acreage held as community property whereas, after said date, each spouse should be charged with one-half the total irrigable acreage. I am of the opinion that this distinction in the application of the excess land provisions of the Federal reclamation laws is not warranted either by the community property laws of the State of California or the Federal reclamation laws. The California courts have not been consistent in their rulings with relation to the quality and quantity of a wife's interest in community property, sometimes holding that she has an equal and present interest and ownership (Beard v. Knox, 5 Calif. 252); and at other times holding that she has an expectancy (Estate of Burdick, 112 Calif. 387, 44 Pac. 734; Stewart v. Stewart, 199 Calif. 318. 249 Pac. 197; and see also 39 Harv. L. Rev. 762, and cases therein cited, pointing out the confusion of the California courts on the question of the wife's interest in community property in that State). The question seems to have reached a climax when the Supreme Court of the United States in United States v. Robbins (269 U. S. 315), decided that the wife could not file a separate income tax return for one-half of the husband's income. The California Legislature then enacted section 161a of the civil code, which provides: "The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing, and equal interests under the management and control of the husband as is provided in sections 172 and 172a of the civil code. This section shall be construed as defining the respective interests and rights of husband and wife in community property." |