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will prove the validity of this contention. Through the short span of less than a century these areas have been changed from large farms to small farms, from an area with a few owner families and many workers to one of small farms providing for thousands of families. The change was brought about through the pressures of taxes on the land for water development whether the water was used or not, and through the changes manifested in the shift from extensive dryland farming to intensive diversified irrigation farming. California has proven that arbitrary acreage limitations are not necessary to achieve the objective of utilizing irrigated land in the best interests of the country.
Senator ANDERSON. You heard the questions I directed to the question of Spanish land grants and the question of whether Spanish law and tradition had built this up in our Spanish borderland country. Do you feel that the influence of what Mr. Douglas called American law as different from Spanish law has had anything to do with this situation ?
Mr. SMITH. Certainly in California many of these lands referred to were formerly in Spanish grants and they have been broken up. They now take care of literally thousands of farm families where the average acreage in some of the districts is less than 40 acres.
Senator ANDERSON. There was not too long ago that a whole gigantic strip across Arizona was claimed in the barony of Arizona. They never sustained the claims of the barony in Arizona in the courts. It was developed as a land fraud. A tremendous area has been involved in that. Arizona has been changed to an area of reasonably small farms.
Mr. SMITH. And the process still goes on.
Mr. SMITH. I comment here on page 3 of my prepared statement as to the status and interest of the irrigation district organizations and point out that the 70 years' experience in California water development by either individuals or districts has resulted in the irrigation of one-quarter of the whole irrigation acreage in the United States.
I point out we have public districts in 37 counties including about 5 million acres of land in the organization.
I note later in my statement a quotation from Principles of Water Development and Use developed in 1947 by the Irrigation Districts Association in which we say:
It is fundamental in California that a landowner within an irrigation district is entitled to his portion of the available water, in accordance with the assessed valuation of his land. There must be no violation or disturbance of this basic principle.
That is what we stand on and that is what the State supreme court stood on in the Ivanhoe decision.
Senator ANDERSON. Since you have gone into that, the supreme court just this week heard 312 hours of argument on this Ivanhoe case. The California court ruled that the California irrigation districts could not contract with the Secretary of Interior to limit water to 160 acres to a single owner. If this suit prevails, can the Secretary in your opinion deliver water by means of Federal facilities under the 1902 and 1906 acts?
Mr. Smith. I wonder if you will permit me very briefly to complete my statement and then ask counsel, Harry Horton, who participated in the case, to answer the question !
Senator ANDERSON. I will be happy to. I will keep asking it.
We included in this statement some comments from the Land Limitations Committee in its 1957 report because it is pertinent, but I will not repeat that because it has already been referred to.
I will conclude by saying this:
The three major problems created by rigid limitation of acreage are commended to the attention of the committee. These comments come from one of the most able attorneys in California who is deeply involved with a substantial number of districts which now have contracts in the Central Valley project.
Leroy B. McCormick, Bank of America Building, Visalia, comments as follows on these problems:
First, in some of our districts we run as high as 30 percent in excess lands. Our contracts require that the permanent quantity of water be fixed in a limited number of years, and that time is fast approaching. These acreages are not using CVP water at the present time and we are not building up the water de mand. We know that sooner or later some of these lands are passing to another generation and must necessarily break up. As soon as this happens, a large block of land will start using district water under the terms of the contracts and the limitation acts. Where is the water coming from? It could be serious if, at some time in the future, all of the lands were removed from the category of excess lands.
Second, a husband and wife have the right to water for 320 acres of land. Suppose either should pass away and leave a spouse and family. The family obligations would be increased rather than decreased by the death of one, and yet the available water supply is reduced as much as one-half. We have one actual case now where this question is involved.
Senator ANDERSON. That is the question I tried to raise with Senator Douglas this morning. What happens? If you are in a community property State, the allowance is for 320 acres of land.
Mr. SMITH. Yes.
. munity property to his wife. She then becomes the owner of 320 acres. She has to sell half the farm.
Mr. SMITH. Inside of 5 years.
Senator ANDERSON. If she cannot free herself from that water limitation, she has to dispose of the farm entirely which she may not want to do. Obviously she cannot leave half of it irrigated and pay the water tax on the other half of it.
Mr. JACKSON. Mr. Chairman, that is the proposal that NRA is asking in a redefinition of family unit and suggesting legislation to this committee which would permit the surviving spouse to retain that farm intact until her death.
Senator ANDERSON. Can you imagine the beating of the breasts there would be if that came before the Congress? Look at the violence it would do to the 160-acre limitation. What right has a wife to own 320 acres of land because her family always owned it?
Mr. JACKSON. For the simple reason that she had a heavier family obligation than when the husband was alive.
Senator ANDERSON. I understand that thoroughly. I have some land of my own.
Mr. Jackson. We think it is good and proper for the farm family.
Senator ANDERSON. I am 62 years old, and I started out with tuberculosis at 21 and have been fighting against it ever since. It is just possible that some of these years something might happen to me in the next 30 or 40 years.
Mr. Jackson. Make it 40, Senator.
Senator ANDERSON. Then what happens? If there is a 320-acre limitation on that and you get 160-acre limitation, does my wife have to sell 160 acres if she does not want to and, if so, which 160 will she pick out?
Mr. Jackson. She has to do it under the present law within 5 years. We think it is unjust.
Mr. SMITH. McCormick continues:
We do need some provision to help the predicament in which the surviving spouse finds himself or herself after the death of one, especially if one continues to qualify as the head of the household.
Third, in some areas we have tried to build up the underground supply but the excess lands, not using district water for irrigation water, pump the water from the underground supply and we get nowhere. In such cases the small user is really the fall guy.
It is so often we presume in trying to take a sock at a large landowner at the expense of the small land owner. This is an example of that.
The result of the impact of the above three problems is that the small landowner, the man the act wants to help, is the one that gets the ax. The large landowner can drill expensive wells and spread it over his acreage and make it pay, but the small acreage man cannot do it. You cannot put a $10,000 well on 20 acres and make it pay, except in most exceptional spots.
Based upon my observation, the provisions of section 3 will encourage some of the excess landowners to use district water. This will help us in building up the underground supply and also help increase the permanent contractual amount. In this way the excess land can be assured of its water, should it be longer held by an excess landowner.
It should be observed that the very practical problems of operation which Mr. McCormick reviews were all contemplated when the announcement was made over 10 years ago that the rigid excess land provisions of the Reclamation Act would be applied to the CVP. The political considerations and the social theories have unfortunately overshadowed the practical, realistic problems which the districts face. The committee is to be commended for its efforts to arrive at an equitable and realistic solution to a baffling problem.
Mr. Chairman, I would hope that included in the record could be a copy of this telegram which was addressed to you from A. A. Daniels, president of the Friant Water Users Association, Visalia. It was sent yesterday.
The meat of it is this:
We wish to bring to your attention the present serious waste of water which could be used to recharge the underground reservoirs in the areas served by the San Joaquin unit of the Central Valley project. The law prevents delivery of present surplus water supply to excess lands even though flood damage results from present reservoir spill down the San Joaquin River to the Pacific Ocean and such damaging releases are now expected to continue for 60 days. If deliveries could be made to excess lands through present facilities underground storage would be benefited and flood damage mitigated. Cyclic storage is one of the primary functions of the Central Valley project and cessation of pumping by excess ownerships would give tremendous impetus to the groundwater recharge program so vital to the long-term aspects of the project. We urge consideration of remedial legislation and prompt action so that the same benefit can be realized during the present period.
That concludes my statement, Mr. Chairman. (The telegram referred to appears in the appendix of the record.)
Senator ANDERSON. Mr. Horton, if you will give us a brief answer to the question I asked, we would appreciate it.
STATEMENT OF HARRY W. HORTON, CHIEF COUNSEL, IMPERIAL
IRRIGATION DISTRICT, CALIFORNIA Mr. HORTON. Chairman Anderson and members of the committee, I am imposing upon you because I have a plane reservation to leave this afternoon, and I have to go back to California.
My name is Harry W. Horton. I am an attorney engaged in the general practice of law in California. I have been chief counsel of the Imperial Irrigation District since April 1934. I am a member of the legal staff of the Irrigation Districts Association of California. I happen to be one of the counsel in the Ivanhoe case that was just mentioned. I happen to be one of the counsel in the case of Arizona versus California, now pending, for which I have to return to California for the resumption of trial.
My legal work for the last 15 years has been almost entirely in connection with water matters and reclamation law.
If I may beg your indulgence to refer to page 13 of the memorandum dated April 25, 1958, which refers to an opinion of the Solicitor that makes reference to the Boulder Canyon Project Act. I would not have been here had it not been for the fact that I found that in circulation and my only request in that regard is this: I hope that in any report made by this committee there will be no presumptions indulged in in favor of Mr. Harper's opinion.
Senator ANDERSON. I did not care anything about Mr. Harper. What I am trying to get you to comment on is this. Section 46 of this Omnibus Adjustment Act of 1946.
No water shall be delivered upon the completion of any new project or new division of a project until a contract or contracts approved by the Secretary of Interiorand so forthshall have been entered into. Such contract or contractsI have skipped a great many wordsshall further provide that all irrigated land held in private ownership by any one owner in excess of 160 irrigable acres shall be appraised in a manner to be prescribed by the Secretary of Interior and the sale prices thereof fixed by the Secretary on the basis of its actual bona fide value of the date of appraisal without reference to the proposed construction of irrigation works and no such excess land so held shall receive water from any project or division if the owners thereof shall refuse to execute a valid recordable contract for the sale of such land under terms and conditions satisfactory to the Secretary of Interior and so forth.
If it is decided that the 160-acre limitation does not apply, then the Secretary of the Interior can't put that in the contract. If he
cannot put it in the contract, he cannot deliver any water. Had we not better know that before we authorize any more projects?
Mr. HORTON. Senator Anderson, I would like to comment on that in this way. I think I am fully familiar with that section 46 of the act of 1926.
Senator ANDERSON. I did not mean to infer that you were not. I want you to tell me what the Secretary should do if the Supreme Court holds that these 160-acre limitations are not valid, and he cannot sign a contract until you put a 160-acre limitation in it.
Mr. HORTON. In the first place, let me tell you what has been done where such a case has come about. In the State of Wyoming the Supreme Court of Wyoming had before it the very question of section 46 in a contract which provided for the acreage limitation and the recordable contract that you have made reference to. The Supreme Court of Wyoming in analyzing the requirements of that contract made the statement in substance that the principles contained in that of the enforced sale of the property that a man had worked and lived on and acquired and built up was contrary to the fundamental principles of our Constitution and our right to own, hold, and acquire property, and that any such contract would not be enforceable, and would not be permissible under Wyoming law. As a result of it, in the Owl Creek project, in Wyoming, the contract which the Government sought to have there made in keeping with section 46 of the act of 1926 was declared to be one that would not be legal in the State of Wyoming
The result was that within a few months after that Congress passed an exemption of the Owl Creek project so far as the acreage limitation is concerned.
Senator ANDERSON. Then it would be your theoryMr. HORTON. No, I do not say that is the only answer to it. I will give you another. In connection with these same contracts in connection with the Central Valley—and heaven forbid my trying to argue or have a lawsuit decided or any influence based upon it by appearing before this committee, that is not my purpose-involved in the Ivanhoe case is not only the acreage limitation, but the question of water rights. That is involved in any case where existing water rights exist. That is, where there is a going project as has been referred to by Mr. Bert Smith, where the land is within a developed project in those areas of a water right, the court in California held that you could no more limit the use of water within the State of California, regardless of its source, whether it came through a Federal project or a non-Federal project or whatever its source might be, you could no more limit that on the basis of the acreage that a man might own, because it came from a Federal project, than you could from a nonFederal project, and held that the authorization by the California legislation for the delivery of water in keeping with the Federal statute was special legislation under the California law, and not general legislation of uniform application as required by section 11 of article I of the California Constitution. The California Legislature had attempted to validate the Ivanhoe contract by specific language. The California Supreme Court held that the court could not validate it, because they could not pass an act which would permit discrimination between landowners in California on the basis of the acreage they owned.