California v. United States

CALIFORNIA al. v. UNITED STATES et Argued No. 77-285. July March 1978 Decided Court, in which BurgeR, opinion of J., delivered RehNquist, joined. JJ., and SteveNS, Powell, BlackmtjN, J., and Stewart, C. Marshall, and dissenting opinion, in which BrenNAN J., filed a White, post, p. joined, 679. JJ., California, of Attorney General Walston, Deputy Roderick the briefs him on With petitioners. the cause argued Connett, H.R. Attorney General, Younger, Évelle J. were Jacobs, Deputy C. Richard General, and Attorney Assistant Attorney General. cause for argued Barnett General Solicitor

Deputy General were Solicitor brief him on the With United States. Sara Sagalkin, Attorney General Assistant McCree, Acting Carl Strass* Steenland, and Beale, Peter R. Sun for their officials filed urging reversal was curiae of amici *A brief Attorney of Ari- Babbitt, General Bruce E. respective as follows: E, of Attorney MacFarlane, General Hunsaker; D. Ralph J. zona, and Wayne L. Attorney General; Robbins, Deputy Colorado, W. and David Attorney Schneider, Idaho; Curt T. General Attorney Kidwell, of General Douglas, L. Montana; Paul Greely, Attorney General of Kansas; Mike Attorney Smith, C. Assistant Nebraska, and Steven Attorney General Harry W. Nevada, Swain- List, Attorney General; Robert General Toney Attorney New General; Anaya, General of Attorney Deputy ston, General; Allen Attorney Simms, Special A. Assistant Mexico, and Richard Larry Derryberry, At- Dakota; D. Attorney Olson, I. North General Attorney Larry Barnett, Oklahoma, D. Assistant torney General Laue, Al Attorney Oregon, J. Redden, A. General General; James Janklow, Attorney Dakota, of South General; William J. General Solicitor Rehnquist Mr. Justice opinion delivered the of the Court. The United States to impound seeks 2.4 million acre-feet of water from California’s Stanislaus part River as of its Central Valley Project. The California State Water Resources Con- trol Board ruled that the water could allocated to the Government under state law agreed unless it complied with various conditions dealing with the water’s use. The Government then sought a declaratory judgment in the Dis- trict Court for the Eastern District of California to the effect that the United States impound can whatever unappropriated water is necessary for a federal reclamation project without complying with state' law. The District Court held that, aas matter of comity, the United States must apply to the State for an appropriation permit, but the State that must issue the permit without if condition there is sufficient unappropri- ated water. 403 F. Supp. 874 (1975). The Court of Appeals for the Ninth Circuit affirmed, but held that § 8 of the Recla- mation Act of 1902, 32 Stat. 390, as codified, U. S. C. §§ 372, 383, rather than comity, requires the United States to apply for permit. 558 F. 2d 1347 (1977). granted We certiorari to review the decision of the Court of Appeals in- sofar as it holds that California cannot condition its alloca- tion of a federal reclamation project. 434 U. S. 984 (1977). We now reverse. and Neufeld, Warren B. Attorney Assistant General; John At- Hill, L. torney Texas; General of Slade Gorton, Attorney General of Washington, and Charles B. Roe, Jr., Senior Attorney Assistant General; and V. Frank Mendicino, Attorney Wyoming, General of and Jack D. Special II, Palma Attorney Assistant General. Thomas and Frederic P. Sutherland Graff

filed a brief for the Environmental Defense Fund et al. as amici curiae urging reversal. Kuney, Kenneth A. Fraser, P. John and T. V. A. Dillon filed a brief for Assn,

the Friant Water Users et al. as amici curiae urging affirmance. of Briefs amici curiae were by filed Robert Pelcyger S. and Robert D. Pyramid for the Stitser Lake Paiute Tribe of Indians; and Charles J. Meyers se. fro

I District federalism, which comity and of Principles have which referred Appeals the Court Court legal as a decisions, are our attention considerable received States, statutes the United on the based Constitution matter situations law. But judge-made Congress, enacted contributed principles have application these invoking truly said itas has been formation. Just importantly their see experience, but logic is not life of the law it be said (1881), may so Law 1 Holmes, The Common 0. experience. but political philosophy the life of the law the different Nation, territory as of our very vastness varying settled, and acquired and which it was times at its differ- which obtain regimes climatic physiographic legal dis- recognition but necessitated have parts ent all who first Those to these differences. corresponding tinctions tidal estu- ships sailing from foot in North America set those problems same Virginia did not confront aries of new in search River the Ohio boats down who sailed flat North- old forests who cleared to farm. Those sites problems physiographic totally different Territory west faced The final Great Plains. huts on the who sod from those built arid century into the 19th in the Nation our expansion had which longitude, meridian of hundredth beyond the lands Desert,” American maps as “Great on early shown been face face-to expansion in that brought participants terri- no way previous necessity irrigation for a had. expansion torial the Reclama- meaning of correctly ascertain order truth that the obvious recognize must we 1902, Act of

tion date was before reclamation irrigation history is than then minds of those in the fresher much true was the July 1847, 23, afternoón today. to us “[T]he It was on that irrigation. of modern the beginning date built a small pioneers of Mormon first band that the afternoon dam across City Creek near the present site of the Mormon Temple and diverted sufficient water to saturate some acres of exceedingly dry land. the day Before was they over planted had potatoes to preserve the seed.” During sub- sequent half century, irrigation expanded throughout the arid States of the West, supported usually by private enterprise or the local community.2 By the turn of the century, however, most the land which could be profitably irrigated by such small-scale projects had been put to use. Pressure mounted on the Federal Government to provide funding for the projects massive that would be needed to complete the recla- mation, culminating in the Reclamation Act of 1902.3

The arid lands were not all susceptible of the same sort reclamation. The climate topography of the lands that constituted the “Great American Desert” quite were different from the climate and topography of the Pacific Coast States. As noted in both United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950), and Ivanhoe Irrigation McCracken, District v. 357 U. S. 275 (1958), the latter not only States a had more pronounced seasonal variation and precipitation than the intermountain States, but the interior portions of California had climatic advantages which many of the intermountain States did not.

“The prime value in our economy national of the lands of summer drought on the Pacific coast source of Golzé, 1 A. Reclamation in the (2d 1961). United ed. author at publication the time of Engineer the Chief of the California Department of Water Resources and formerly had been Assistant Com missioner of the United States Bureau of Reclamation. 2 Id., at 6-12. 3 Id., at 12-13. development Private has major continued be a con tributor the reclamation of the West. From federal projects reclamation increased irrigated amount of 5,700,000 land acres. only This still accounted, however, approximately for one-fifth of irrigated acreage in the 17 Western States covered the Reclamation Act of 1902. During period the same 1950, private from 1902 to reclama opened tion up Id., 10,000,000 over acres irrigation. Table 1-1. long grow- winters and require mild plant products hardy deciduous the less fruits, Citrus ing seasons. most their are vegetables in winter —these fruits, fresh summers present. Rainless contributions at important puts fruits, of which inexpensive drying possible the make peaches, dried prunes, raisins, into the market economy in American apricots. present In its relation to in agriculture of problem technical general, primary increasingly more is to make Pacific Coast growing long mild winters and effective use by the presented obstacle great season in the face of the supple- To overcome that obstacle rainless summers. key necessary. position Hence the mentary irrigation is agriculture.” of water in Pacific Coast in vogue in “cooperative If federalism” had been the term surely year would have Act of that 1902, the Reclamation leading example Act, of it. In that qualified as a operate dams, program on massive to construct and set forth a lands in reclamation of the arid and canals reservoirs, “cooperative federalism” Reflective of the Western States. scope meaning Act whose exact which the embodied in case: inquiries the critical this are affecting in he construed as

“[N]othing this Act shall with the any way or in or intended to interfere affect control, any Territory relating or to the laws State use, irrigar used or distribution appropriation, tion, any right acquired thereunder, and or vested Interior, carrying provisions out the laws, Act, such proceed conformity shall any any right of nothing any way herein shall in affect any landowner, or of or of the Federal Government any inter- to, or of water or from appropriator, user in, Provided, thereof: stream or the waters state (1941). Agriculture, and Man 204 For Department 4 U. Climate S. general description in California and the Californians’ of water conditions them, Aqueduct Empire Cooper, see E. answer

651 to the acquired use provisions water under the of this Act shall be appurtenant to the irrigated, land and beneficial use shall be the basis, measure, the limit of the right.” 32 Stat. 390 (emphasis added). Perhaps because of the cooperative nature of the legisla tion, and the fact that merely the Act authorized expenditure of funds in States whose citizens were gen erally anxious to have them there has expended, been great litigation deal of involving the meaning of its language. Indeed, so far as tell, we can the first case to come to this Court involving the I Fox, Act at all was ckes v. 300 82 U. S. (1937), and the case require first construction of 8 of Act was United States v. Gerlach Co., Live Stock supra, de nearly cided half & century after the enactment of the 1902 statute.5

The New Melones Dam, which litigation this concerns, part of the California Valley Central largest Project, reclamation project yet authorized the 1902 Act.6 under Dam, which impound will 2.4 million acre-feet California's Stanislaus River, multiple purposes has flood control, irrigation, municipal use, industrial use, power, recreation, water-quality and the control, protection of fish and wildlife. The waters of the Stanislaus River that will be impounded behind the New Melones Dam arise and flow solely in California.

5 Section 8 of the 1902 only Reclamation Act has been mentioned in seven cases by decided States, Court. See Ide v. United 263 S.U. (1924); 497 Nebraska v. Wyoming, 295 (1935); U. S. 40 Nebraska v. Wyoming, 325 (1945); S.U. United Co., States Gerlach Live Stock v. (1950); Irrigation S. 725 U. McCracken, Ivanhoe District v. (1958); City U. S. 275 California, Fresno v. (1963); 372 U. S. 627 Arizona California, 373 U. S. 546 6The New Melones Dam was authorized the Flood Control Acts of 1962, 1944 and 58 Stat. 76 Stat. 1191. in the As case of all other projects, reclamation Congress specifically directed that the Dam be con operated structed “pursuant the, laws,” Federal reclamation Stat. principal one of which is'the Act of 1902. Reclamation has with as it Reclamation, Bureau The United States permit for a applied project, reclamation federal every other the California here agency, appropriate state from the the water appropriate Board, Control Resources Water reclama- used for later Dam and impounded would Board found hearings, the State lengthy After tion.7 Melones New for the was available unappropriated there- Although it year. times certain during Dam Board the State applications, the Bureau's approved fore Water California State permit. the 25 conditions attached 1973). (Apr. Decision Board, Control Resources impoundment full prohibit conditions important The most least or at commitments, firm is able to show until Bureau the Board The State the water.8 for the use of plan, specific a water appropriate law, any person wishes to who California Under Board. Control Resources from the State Water apply permit must for a 1971). is to (West The Board 1201 and 1225 Code Ann. Cal. Water §§ unappropriated is avail water only permit if it determines a issue “beneficial” and and proposed “reasonable” use is both able and that the Const., 1375; 1240, 1255, and Cal. public interest.” best serves “the §§ is to permit, a Board determining to issue 2. whether Art. uses, alternative but also only planned use of the water consider not preservation recreation, quality, and including enhancement water 1242.5, 1243, and 1257 Code Ann. of fish and wildlife. Cal. Water §§ permit conditions in (West 1971). impose also such The Board can of the “beneficial” use necessary the “reasonable” and to insure as are and 1391. public “the interest.” protect and to water §§ year during periods prohibit collection of water Other conditions require unavailable; preference that a be unappropriated water is when Dam in which the New Melones given in the water basin users water maximum require storage to be made so as to maintain located; releases Joaquin River and in the San minimum chemical concentrations and require provide means for wildlife; protect the United States fish and vegetation structures from excess waters and to clear and the release of studies; require reports and sites; filing of additional reservoir public. provide project site the State Board and for access to jurisdiction impose further to the Board to other conditions reserve Still necessary protect if the “beneficial use” appropriations conditions on the use plan of beneficial specific concluded without such a statutory require- the Bureau had failed to meet California appropriation. for ments of the

“The water resources unappropriated limited in the applicant should not committed to an need for the absence of his actual showing evi- When the within a reasonable time in the future. already applicant here, dence does that an indicates, needs to sufficient water to meet his has a rights to future, beneficial use within the foreseeable withheld and that additional water should be Id., at 16. should be reserved for other beneficial uses.” II Federal Govern- relationship between the history The arid lands the reclamation of the ment and it runs through but long involved, Western States is both deference continued purposeful the consistent thread of streams, to state water law Congress. rivers, under the acquired by of were United States lakes California Republic the Treaty Guadalupe Hidalgo with the 1848 of the year treaty, of that Mexico, of 922. Within Stat. in this new settlers gold began, California rush and the of water riparian doctrine quickly land realized that the regions of the served well in the humid that had rights in of West. Other work the arid lands the East would not the basin area, into coming the intermountain settlers vast Rocky Moun- range country which lies between the and Cascade on the east and Sierra Nevada tains conclusion. were forced to the same Ranges west, on the linked to prior appropriation, In of place, its the doctrine laws, through customs, arose local water, beneficial use of the challenge any did not involved. The United States declaratory the federal action law, but instead filed conditions under state before that is now us. early stage judicial decisions. Even the devel

opment many law, of Western water before of the Western States had been deferred to Union, admitted to the Co., local law. in Broder v. growing Thus, Water appropriation U. S. 274 the Court observed (1879), that local “rights conduct, were government had, by which the its Id., recognized encouraged protect.” and was bound to at 276.

In Union 1850, California was admitted as a to the equal “on an footing original respects with the in all admitting 9 Stat. 452. 3 of the §While Act whatever.” specifically California to the Union to the United reserved no “public States all lands” within limits of California, provision unappropriated was made for the waters in Cali- fornia's legal streams and One school of commenta- rivers. tors held the that, doctrine, view under the equal-footing States, upon Western their to the Union, acquired admission sovereignty unappropriated exclusive over waters their leading streams. one example, expert for on recla- mation and water law observed that has heretofore been “[i]t authority assumed disposal each State water-supply unquestioned within its borders was provisions and two of States have constitutional supreme, asserting ownership water-supplies absolute all within their bounds.” E. Institutions 372 Mead, Irrigation (1903).9 Such commentators support language were not some from without Irrigation Investigations Elwood Mead was Chief of Dr. Department Agriculture publication. at the time of his treatise’s Dr. principal Congress during Mead was a hearings witness before on the Reclamation Act of 1902 and later became Commissioner of Reclama tion, serving position in that from 1924 until his death in 1936.

Three adopted provisions asserting States have Western constitutional Const., ownership absolute over the in waters their States. See Colo. 5; 16, Const., 210; Wyo. Const., Art. D. 17, 8, N. Art. Art. 1. Other § § § ownership by g., States have See, asserted statute. e. Code 42-101 Idaho (1977). upheld provisions The courts of these States these on the have Wiel, contemporaneous in decisions of this Court. See S. (2d pp. in 84t-95 40-43, §§ the Western States Nights Water (1907), 1908). Thus, Colorado, ed. Kansas v. 206 U. S. the Court noted: only in are be found if not mainly, arid lands to

“While yet powers States, the Western newer Government within the limits of those States National no than those within (no greater less) are the same original the limits of thirteen. plain

“In counsel for on the demurrer argument expressly had tiff endeavored show that its territory prior to imposed the common law on all this formation into . . But when the States States. . they admitted into the Union Kansas Colorado were sovereignty of local powers were admitted with the full Hagan, belonged which other Pollard v. States, [3 v. Shively Bowlby, 1]; v. Hardin 212]; How. U. S. [152 Shedd, legislation its 190 U. S. and Colorado 519; flowing recognized appropriating has Id., 92 and 95. purposes irrigation.” waters Irrig. Co., 174 And United States Rio Grande Dam & see v. (1899). and 709 690, 702-703, U. S. began arid almost earlier,

As noted reclamation lands pioneers to the immediately upon the arrival of Western sys- Huge private money were invested States. sums agriculture, transport mining, distances for tems vast very high percentage ordinary consumption. Because a belonged Government, to the Federal of land the West frequently crossed ditches that carried this water canals and nonnavigable gained dominion their ground that the States absolute over Leddy, See, g., Stockman upon to the Union. e. waters their admission (1912); Co. v. 27-29, 220, 221-222 Farm Investment 129 P. 55 Colo. Carpenter, Wyo. 110, 61 P. 258

656 In

federal land. 1862, Congress opened public the domain to homesteading. Homestead Act 1862, 12 392. And in Stat. 1866, Congress expressly opened the first time the mineral public lands exploration occupation by domain to and miners. Act of Mining ch. 14 1866, 262, Stat. 251. Because fear of the way these Acts might some interfere with rights systems and grown that had up under state law, Congress and local explicitly recognized and acknowl- edged the local law:

“[WJhenever, by priority of rights to use possession, of water for mining, or other agricultural, manufacturing, vested purposes, have and accrued, and the same are rec- ognized acknowledged by the local customs, laws, possessors decisions of courts, and owners of rights such vested shall be protected maintained and 9, same.” 14 § Stat. 253. Mining ofAct 1866 grant was itself a rights pursuant to federal law. Instead, as this Court observed, “ the Act voluntary ‘a recognition of a preexisting ” a constituting valid possession, claim its continued use.’ United States v. Rio Co., Grande & Irrig. Dam supra, at 705. Congress intended “to recognize as valid customary law respect to the use of water which had grown up among occupants public land under peculiar necessi 10 ties of their condition.” Basey v. Gallagher, 20 670, Wall. 684 See Broder Co., supra, v. Water at 276; Jennison Kirk, 98 U. S. 459-461 (1879).11 Stewart, Senator the most vocal of supporters, the 1866 Act’s noted during debate that to the use of water ... “confirms established local law and the short, decisions of the courts. pro it poses system, no sanctions, regulates, system new but confirms people devotedly which the are Cong. Globe, attached.” Cong., 39th 1st Sess., (1866) (emphasis added). years later, July Four 9, 1870, Act 16 Stat. occupants public reaffirmed that of federal land would be bound state In 1877, Congress took step its first toward encouraging reclamation and settlement of the public desert lands in the West made clear that such reclamation would generally follow state water law. In the Desert Land Act of 1877, Congress provided for the homesteading of public arid lands in larger tracts

“by [the conducting upon homesteader’s] water the same, within the period of years three filing [after a declara- tion to do so], Provided however that the right to the of use water the person so conducting the same . . . shall not exceed the amount of water actually appropri- ated, necessarily used for the purpose of irrigation and reclamation: and surplus all water over and above such actual appropriation and use, together with the water all, lakes, rivers and other sources of of supply upon the public lands and not navigable, shall remain and be held the appropriation and use free for the public irrigation, mining and manufactuing for purposes subject to existing rights.” Ch. 107, Stat. 377 (emphasis added).

This Court has had an opportunity to construe the 1877 Desert Land Act before. Oregon Power Co. v. Beaver California Portland Co., Cement 295 U. S. (1935), Mr. Justice explained Sutherland12 that, through this language, Congress law, by providing patents “all granted, or preemption or allowed, homesteads subject shall be any to vested and accrued water rights.” The effect of the 1866 and 1870 Acts was not limited to rights previously acquired. “They reach into the [ed] future well, as approve[d] policy of appropriation confirm[ed] a for beneficial use, recognized by local rules and customs, and the legislation^and judicial decisions of the arid-land states, as the test and private measure of in and to the non-navigable waters public on the domain.” California, Oregon Power Co. v. Beaver Portland Co., Cement U. S. 12 Mr. Justice grown Sutherland had up Utah very and was familiar in. with the Westerners’ efforts tame the desert. Elected to not domain, public upon all waters a severance “effected Id., 158. at itself.” the land from appropriated, theretofore “reserved were thereby severed waters nonnavigable terri- of the states the laws under public use federalize not to purpose Congress’ Id., 162. tories.” local under evolving already doctrine prior-appropriation opposite: Quite law. if act following hold is that we

“What public part waters then non-navigable all before, con plenary subject juris, publici became domain created since including those states, designated trol of the each named, the territories out appro rule of extent what for itself determine riparian respect rule in common-law or the priation enforce cannot ‘Congress For since obtain. should Colorado, U. S. 206 v. Kansas any state,’ upon rule either remain must choice power full 46, 94, or purport not bind Act does Land The Desert state. recognizes simply It any policy. bind the states its States United as the in so far sanction, gives doc local to the state concerned, are grantees future other remove what seeks appropriation, trine of full and successful its impediment an might be wise 419, 465.” Colorado, U. S. 259 v. Wyoming operation. See Id., 163-164. Co., U. S. Irrig. 188 &Land Albuquerque also Gutierres

See ; (1937) 95 82, Fox, U. S. Ickes v. 300 (1903); 552-553 545, Commissioner, 352, U. S. Brush v. According Irrigation. on to the Committee assigned was 1900, Sutherland problem knowledge the water “intimate biographer, Sutherland’s

to his this contribution” conspicuous a to make him enabled West Against the A Man Sutherland: Paschal, Mr. Justice assignment. J. participants principal one of the (1951). Sutherland Id., at 44. 1902. Act of the Reclamation formulation of Congress next addressed the task of reclaiming the arid lands of the 11 West years later. The opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or irrigation other works, impeding future reclamation efforts. Congress ad- dressed this problem in the Act of Oct. 1888, 25 Stat. 527, which provided: 11the

“[A] lands which may hereafter be designated or selected such United surveys for sites reser- voirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reser- voirs, ditches or canals are from this time henceforth hereby reserved from sale as the property the United States, and shall not be subject after the passage of act, to entry, settlement or occupation until pro- further vided by law.”

Unfortunately, this language, which had been hastily drafted and passed, had the practical effect of all reserving of the public lands in the West from settlement.13 As a result, “there came perfect storm of indignation from the people of the West, which resulted in the prompt repeal of the extraordinary of Cong. McRae). 391, Congress repealed the 1888 provision except insofar as it ^[1888] provision.” 29 Cong. Rec. 1955 (1897) the Act of In Aug. 30, (statement Stat. reserved reservoir sites. Then, in the Act of 3,Mar. 1891, 26 Stat. 1101, as amended, 43 U. S. C. 946, Congress provided for rights-of-way across public the lands to be by “any used canal or ditch company for formed the purpose of irrigation.” The apparent purpose of the 1890 and 1891 Acts towas reserve reservoir sites from settlement but to open them for use in reclamation projects.14 As before, Congress expressly indi 13 See 29 Cong. Rec. (1897) (discussion 1948 by Cong. Lacey); id., (discussion 1955 by Cong. McRae). 14 Ibid. And see Report to Secretary the of the Interior on the Blue 660 controlled state be the reclamation would

cated law:15 reser- way through public lands and right of the

“[T]he for hereby granted is ... United vations of the ground of the irrigation to the extent purpose , the of ... canal and of the by the water of the reservoir occupied privilege . ; Provided, . . That . . and its laterals . with the granted shall be construed to herein interfere under purposes other irrigation control for of Territories.” States or authority respective added). (emphasis Stat. interpreted the unfortunately, Interior, surveyed reserving governmentally

1890 and 1891 Acts as rectified sites use rather than use. reservoir from 1897, 335, interpretation the Act of Feb. ch. 26, 599, provided: which Stat. be reserved 11reservoir sites reserved or shall

“[A] Act right-of-way under open occupation to use and ninety-one. And third, eighteen of March hundred and occupy any hereby improve authorized to or individual such reservoir sites the same extent as an Irrigation Acting Land of the Water & Co. Commissioner General Office, 23, Land Nov. 1895. 15Congress’ contemporary deci intent was reflected in administrative Interior, According Department sions. 1891 Act of the “relegate[d] appropriation the matter of all natural sources control of supply authority of water in the state of California to the of that state. 3, 1891, only way pub The act of right March deals with the over the dispoátion purposes irrigation, leaving lic lands to be used for Sinclair, (1894). water to the state.” If. H. I. D. period explaining Act, Depart a circular of the same the 1891 the Interior ment noted the “control of the and use of the water is ... flow exclusively control, matter under State or Territorial the matter of jurisdiction Department being administration within of this limited approval maps carrying way public over the lands.” 18 D. I. 169-170

private corporation, under such rules and regulations as the Secretary may Interior prescribe: Provided, That the charges for water coming part whole or from reservoir sites used or occupied under provisions the this Act shall always subject the regula- control and tion of the respective States and Territories in which such reservoirs are in or part whole situate.” provision The final of the 1897 Act proposed floor by amendment Representative, later Speaker, Cannon to expressly preserve States’ control over reclamation within their borders. It was clearly opinion the of a majority of Con- gressmen spoke who on the bill, however, that such an amend- ment was unnecessary except out an excess of caution.16 According to Congressman Lacey, Chairman of the House Committee on Public Lands and a principal sponsor of the 16“A reservoir site without entirely water is useless. The water is particular thing in question, and the are waters controlled the States through they flow, which and not the United States America. These are waters, surface waters small streams not navigable, States control them. United “[T]he States does not only control water. It controls reservoir sites in which may the water be collected. The water under is

the control States.” Cong. (1897) Rec. 1948-1949 (Cong. Lacey). “It the State alone owns and water, controls the under the constitution of States; our and I suppose that is true under the laws of every State.” Id., Bell). (Cong. “The amendment which been has proposed by gentleman from Illinois adopted, [Mr. CANNON], really serves purpose, no merely because it reenacts existing law. It would be the law even if the act of 1891 were existence. The belong waters to the States. The United always States Government has recognized that, and the States have legislation enacted directly controlling the use of the Id., waters.” at 1952 (Cong. Shafroth). Only Congress- Terry, man who unsuccessfully opposed bill, suggested contrary. view, his the Federal Government could use its control of the land to regulate price of the water id., stored. See at 1949-1950. be would reclamation the through which Act, the accomplished The Government. the to belong not [Federal]

“does to the belong is stored in which the water reservoirs and will to the States belongs the water but Government, proposed amendment them. controlled be this relieves from Illinois gentleman [Mr. Cannon] I subject. upon that possible from all doubt measure this amend- but anyhow, no could be doubt think there being any question of away possibility takes ment regu- Territories to right the States raised as to the of the price management late and control Cong. Rec. water.” in contem- found reflection Lacey’s statement

Congressman limited with holding that, Court decisions poraneous intra- over authority reclamation, not exceptions relevant Rio In United States waterways lies with States. state author- Co., Mexico’s Irrig. New & for Dam Grande example, rights system of water appropriation a ity adopt prior unhesi- The Court challenged. was Grande River the Rio dominion a within its every “as to stream held that tatingly permit law rule and may common change [the] State purposes as for such flowing of the waters appropriation noted that The Court at 702-703. S., wise.” 174 U. deems control of its exclusive limitations to the State’s are two there necessary may far at least be rights “so streams —reserved id., property,” government of the uses for the beneficial The Court, however, navigation servitude. and the on the limitations respect these emphasize careful to navi- reserved or except that, where power States’ are the State invoked, United servitude gation “Unquestion- waters. authority over its internal total has appropriate right waters, . its . has ably . un- appropriation, may such question the United States disturbed.” thereby navigability '[river] less Id., at 709.

Similarly, Colorado, in Kansas v. 206 U. 46S. (1907), United States claimed that it had a in the Arkansas River superior to that of Kansas and Colorado from stemming power its “to control the system whole reclamation arid lands.” The disagreed Court and held state recla mation law prevail. must The United could States, course, appropriate water and build projects public to reclaim its own lands. “As to those lands within the limits of the States, at least of the Western States, the National Government is the most considerable owner and power dispose has of and make all needful rules and regulations respecting property.” its Id., at 92. But federal legislation could not “override state in laws respect to general subject the Ibid. reclamation.” State has jurisdiction full “[E]ach over the its lands within borders, including the Id., beds of streams and other waters.” at 93. respect With question the presented that had been in Rio Grande Irrig. Co., Dam & the Court reaffirmed that each “may determine for itself whether the common law in respect rule riparian rights or that doctrine which obtains in regions the arid of the appropriation West of waters for purposes of irrigation shall control. Congress cannot enforce upon either rule any 94. S., State.” U. at

Ill against It this background Congress passed that Reclamation Act of help 1902. With the of the 1891 and 1897 Acts, private and state projects gone reclamation had far reclaiming toward lands,17 projects the arid but massive were complete now needed to beyond the goal and these were of private companies means In 1900, and the States. therefore, major all of the political parties endorsed federal funding of projects. reclamation the Democratic While Party’s platform specified none attributes a federal program other than “intelligent,” to recommend it be that Golzé, See A. Reclamation in the United States 9-23 (2d ed. Platforms 115 Party National Johnson, K. Porter & D. recommended specifically Republicans 1961), of the distribution control program “reserv[e] reclamation territories.” respective States to the irrigation assuming after message Congress Id., his first 123. cry for continued Roosevelt Presidency, Theodore again recommended of reclamation funding national water.18 distribution of control the law state reclamation for federal public of the demand As a result to use 57th introduced into- the a bill was funding, in the Western money public the sale of lands from proj- same States. projects those to build reclamation construction land and the actual be built on federal ects would be in the hands'of would projects of the operation clearly provided that But the Act Secretary of the Interior. and later appropriation would control state water law introduced, 8§ originally of the water. As distribution provided: Reclamation Act affecting act be construed as “[N]othing in this shall way interfere with any affect or to or intended to their homes public domain chose pioneer on the arid “The settlers the they divert water along from could themselves streams which practically gone. There are holdings. opportunities their reclaim Such available however, can be made remain, public vast areas of land which canals only by and main-line settlement, but reservoirs for homestead be irrigation should impracticable enterprise. These works private by reclaimed them should by The built the National Government. lands settlers, by and the cost of con the actual be reserved Government for by reclaimed. possible repaid far be the land struction should so among irrigators, water, the streams distribution the the division of of conformity in with State laws and should be to the settlers themselves left rights.” vested H. R. Doc. without with those laws or with interference added). (1901) (emphasis Cong., Sess., xxvm No. 67th 1st provide, than that House, amended so as to rather the 8 was Interior, Secretary govern control,” that “the of the state law “shall conformity in provisions Act, proceed carrying in out the of this shall control, use, “relating appropriation, or distribution state law to the with” Newlands, had introduced According Representative of water.” to- who- the laws of any Territory relating State or to the control, or distribution in appropriation, use, of water used irri- but gation; State and Territorial shall govern laws in control the appropriation, and distribution of the use, waters rendered constructed under available the works provisions the Provided, of this act: That the to the use of acquired water provisions under the of this act shall be appurtenant to the land and beneficial irrigated, basis, use shall the and the limit measure, right.”

From legislative history of 1902, the Reclamation Act clear that state law was expected impor- to control in two respects. tant First, controlling and of importance to this case, Secretary would have to purchase, or appropriate, condemn necessary in conformity strict with state According law. to Representative Mondell, principal sponsor of the reclamation bill in once the House, Secre- tary determined that a project reclamation was feasible and there was an adequate supply of water for the project, “the Secretary of the Interior proceed would to make the appropriation necessary by giving the notice and complying with Territory law the State or forms which the works were Cong. (1902) located.” 35 Rec. 6678 (emphasis added). The could not the Interior any take action in appropriating the waters of the state streams “which could not be undertaken an individual or if corporation position it were of the Government as regards ownership lands.” Rep. its H. No. 794, R. Sess., 57th 1st 7-8 Cong., response Thus, original House, original provi- bill in the in its bill "identical sions, though differing phraseology,” somewhat in to the ultimate Act. Cong. (1902). may 6673 Rec. The bill been have amended to make congressional clear the specific intent that state not law could override the directives of rights that water appurtenant would be to the land id., greater would not be sold to tracts of than 160 at acres. See 6674. generally See n. infra. Secretary would bill that the opponent of an to the

statement law, if in violation state to condemn water even be allowed responded: Representative briskly Mondell any pro- gentleman find such “Whereabouts does the bill is there in the arguing? vision as he is Whereabouts the Federal Government anything attempts give that to or do any right any right water condemn or to take anything which could not do? Will the an individual any provision for the gentleman point any place out or I do could not anything Federal do that Government Iif owned public land? nothing you say RAY of

“Mr. New Do there York. bill provides this that for condemnation? explicitly bill provides “Mr. MONDELL. The except appropriation even an can not be made (1902) (empha- under Cong. State law.” 35 Rec. added).20 sis that under debates, Representative Earlier in the Mondell observed only Secretary have the Act the the Interior would Reclamation

power rights compliance law. “In some to condemn water with state rights purposes of the arid States . . . water can be condemned for Secretary Interior contemplated bill, and in such this authority any individual, and as much would have condemn other recognize no more. the State laws do not to condemn Where contemplated act, property purposes for the in the it will not be con demned, and end laws do not there is the ... . [W]here condemnation, projects on con authorize can be carried without others, demnation, projects undertaken, particular those will not be obstacle, Cong. there where is no such will.” 35 Rec. Ray response Representative statement, Representative Mondell’s “forgotten they provision

asked whether he had . . . that have in this bill a purports upon power to which to confer of the Interior purpose carrying condemn water for the out only Representative responded power scheme.” Mondell existed gives authority Id., him the State law to do so.” at 6688. “[w]herever Representative “Secretary proceed Sutherland also noted that the must proceedings Id., in the condemnation the laws of 6769. under State.” Dam, once the were released from the their Second, waters con- again distribution to individual landowners would be explained by trolled Senator Clark state law. As supporters reclamation Wyoming, principal one leaving bill in the after Senate, “the control of waters through in reservoirs shall be vested the States and Territories Id., which such waters flow.” As Clark at 2222. Senator went on explain: Terri- proper is and and various States

“[I]t conditions tories should control in the distribution. in every Territory each and and are different. totally and locality What would be in one applicable absolutely each and inapplicable another. ... after a every affected, one of and Territories the States long series of after due consideration experiments, espe- conditions, arisen a of men who are there has set cially qualified to deal with local conditions. an has

“Every one of these States and Territories corps engineers who accomplished experienced learning to a years energies their and their have devoted in their individual problem irrigation solution of to take experienced men, To take from these localities. Territories, legislatures from the of the various States would be present time question the control of this at men They are the something little less than suicidal. written qualified question, with the the laws are to deal men, books and read of all upon their statute laws have and Territories the every one of these States diligently regard rights passed that most been Ibid. and of . . . .” settler the farmer of this later to be a Justice Representative Sutherland, As use were succinctly put appropriation “if it, Court, confu- provisions of the State law the utmost not under the Id., 6770. Different water prevail.” sion would would laws and by different governed would same State conflict.21 frequently to Congress’ decision behind motivating factor

A principal 21 dis of the actual relinquish control total to Congress did not intend in provided Congress the States. to water reclamation of the tribution irrigated the land appurtenant to right must be water that the 8 itself § of sale the Congress forbade use, in 5 and beneficial governed § and con It is 160 acres. more than. land of to tracts of reclamation water actually over to may not have intended course, that ceivable, of instead provisions but other with these inconsistent ride state law when that, any project reclamation power over exercise a veto only intended to these compliance with operated in law, not be could of because state Federal by the be simply built Govern project would A provisions. explained the Report As the House existed. conflict ment if such a requirement: appurtenance the workings the 160-acre limitation of defined, clearly being contemplated rights the water of “The character begin construction authorized not be Interior would the Territory satisfied any until in State irrigation of lands or for the works of protected fully recognized and Territory or of said State the laws will of bill feature the contemplated. This the character of water throughout water laws uniformity perfection of undoubtedly tend Sess., 1st Cong., Rep. 57th No. region H. R. affected.” also be intent congressional can interpretation of support this Some of Department of material contemporaneous administrative in found Proceedings Interior, of Department of See, g., e. the Interior. (1904) Service the Reclamation Engineers of of First Conference any in of appropriation filing notice of (“Before the of the first sub- filing advisability making should such matter may be such laws some of the State engineer, to the chief because mitted operations under conducting comply them hi impossible that it Report Interior, Annual act”); Department of the Second the reclamation study made of (1904) (“[Cjareful must be the Reclamation Service in that consideration project under upon effect of State laws each radical in some of the States appears probable that It particular State. projects can be important made before changes must be in the laws undertaken”). however, Act, interpreting the 1902 8 of Reclamation previous cases the dis- law not control in state water does has held that this Court congressional inconsistent with other of reclamation

tribution if McCracken, Irrigation Secretary. District Ivanhoe See directives to the defer to state legal law thus confusion would arise if federal water law and reigned state water law side side locality. same Congress also intended to “fol- io precedent well-established legislation [w] national recognizing local and State laws appropriation relative Id., distribution water.” (Cong. Mondell). As Representative Mondell noted after reviewing legisla- tion discussed in II Part opinion: “Every this act since April that of 26, 1866, recognized has local laws and customs appertaining to the appropriation and distribution of water used in and it irrigation, has been deemed wise to continue our policy Id., regard.” at 6679.22 sponsors

Both opponents of the Reclamation Act also expressed constitutional doubts as to Congress' power to override regulation the States’ of waters within their borders. Congress was fully Supreme aware that the “in Court had (1958); City 357 U. S. 275 California, (1963). Fresno v. 372 627 U. S. of We believe reading that this of the Act is legisla- also consistent with the history tive preferable indeed is the reading 25, the Act. See n. Whatever the respect intent of to state control over infra. the water, however, Congress distribution of in the 1902 Act intended to appropriation follow state law as to of water and condemnation rights. Under the Act, Secretary 1902 the of the Interior au- was thorized in his discretion to “locate and projects. construct” reclamation legislative history As the convincingly demonstrates, the 1902 Act how- ever, if state law did appropriation not allow for the or condemnation of necessary the water, Congress did Secretary not intend the the Interior to project. initiate Subsequent legislation authorizing specific project may by signify congressional its terms intent that the condemn permitted or be appropriate necessary rights project for the question, legislation but no such was Appeals considered Court of opinion in its in this case. That court will arguments be free to consider by the Government this effect on V, remand. See Part infra. 22 In legislation addition this, discussed in Part II of opinion, Congressman Mondell also cited to 1897, National Forest Act of 30 36, “provid [ing] Stat. for the use of waters such on ‘under the reserves ” laws of the State wherein such forest reservations are situated.’ Cong. Rec. 6679 regulate of the State recognized decisions several Ibid. within its borders.” the use of water control Report, “Section to the House Mondell). According (Cong. nonnavigable streams control over waters recognizes 57th Rep. H. R. No. in irrigation.” as are used such added).23 (1902) (emphasis Cong., Sess., 1st IV mandated congressionaily century, half a

For almost smoothly. authority worked federal and state division between of the Secre- approval was constructed without project No this official through the United States tary Interior, funds should how federal- authority its to determine preserved ob- were relating But to water expended. state laws contained congressional directive with the served accordance of two the first 1958, however, 1902. In in 8 of the Act of private landowners decided this Court which cases had water law municipal corporations contended that state or directives to overriding specific congressional the effect of reclama- operation federal Secretary of the Interior as to McCracken, Irrigation District v. projects. Ivanhoe tion decided that Supreme Court of California 357 U. S. expressed doubt whether Opponents of 1902 Reclamation Act also regulation of constitutionally waters Congress could override States’ their borders: within clear, public in a

“Again, to its lands to be the United States as ownership, those only rights private the same as an owner with the of territory into the Union as a State an individual. is admitted of When and sovereignty the of the United is surrendered to the new State States every sovereignty paramount the and becomes as to of State attaches Government, soil, expressly foot of unless reserved to the General subject right public for a use of to the of that to condemn Government necessary performance governmental func- the United States to the of its Sess., preservation.” Rep. Cong., 1st tions or to its R. No. 57th H. (Minority 2pt. Views), 16-17 id., Cong. (1902) (Cong. Ray). 8;

See also Rec. 6687 California law forbade the 160-acre irrigation on limitation expressly deliveries written into 5 of § the Reclamation Act of and that therefore, under 8 of § the Reclamation Secretary Act, was required to deliver reclamation water regard without to the acreage limitation. Both the State of California and the United appealed States judg- from this ment, this Court reversed it, saying: “Section 5 specific is a mandatory prerequisite laid down by Congress as binding in operation reclamation projects, providing that to the ‘[n]o use of water . . . shall be sold for a tract exceeding one hundred and sixty any acres to one landowner . . . .’ Without passing generally on the coverage § 8 delicate area of federal-state relations in the irrigation field, do not we believe that intended 8 to § override the repeatedly reaffirmed policy of 5.”§ national 357 U. S., at 291-292. years

Five later, City Fresno California, U. S. (1963), this Court affirmed a decision of United Court Appeals for § the Ninth holding Circuit 8 did require Secretary Interior to ignore explicit congressional provisions preferring irrigation over use domestic municipal use.24 (c) “Section 9 Project of the provides: Reclamation Act of 1939 . . . relating 'No contract municipal supply pur or miscellaneous poses . . . unless, shall be judgment made in the of the [of Interior], impair efficiency will not project irrigation for purposes.’ It ... appears therefore clear that preferential Fresno has no rights to project contract water, may only if, but receive it in the Secretary’s judgment, irrigation adversely will not be S., affected.” 372 U. at 630-631. The Court also concluded in separate portion opinion: of its 8“§

does not mean that state may operate law prevent the United States exercising power from acquire eminent domain to the water of others. . Rather, . . the effect of 8 such a case tois leave to state Petitioners do not ask us to overrule these holdings, nor presently are we inclined to do so.25 Petitioners instead ask us to hold that a may impose any condition on the “control, appropriation, use, or distribution of water” through a federal project reclamation that is not inconsistent congressional clear directives respecting project. Peti- tioners concede, and the Government relies upon, dicta our may cases that point to contrary a Thus, conclusion. Ivanhoe, the Court beyond went the actual facts of that case and stated:

“As we read 8, merely requires § it the United comply with state law when, construction operation of a reclamation project, necessary it becomes acquire it or vested interests therein. .. . We read nothing in compels § that law the property interests, definition any, if compensation for which Id,., must be made.” at 630. provision Because no of California law actually inconsistent with the exercise the United States of its power domain, of eminent might statement was dictum. It also have apparent been from congressional examination of the authorization of the Valley Project Central Congress that intended the to have the power any necessary to condemn rights. We dictum, disavow this however, to the implies exent that it that state law does not control even where not expressions inconsistent with congressional such intent. 25As earlier discussed in n. arguable is at least did not intend to override state water law when it was inconsistent with con gressional objectives such as limitation, the 160-aere but instead intended objectives enforce those simply by Secretary’s approve refusal to project which could not operated be built or in accordance with them. intent, This however, clear, is not Congress may have specifically provide amended S to that state law could not congressional override respect directives with to a project. supra. reclamation See n. Ivanhoe City legislative Fresno read the history 1902 Act evidenc ing Congress’ specific intent congressional directives which were contrary regulating state law distribution of water would override that aspect law. Even were this nova, Ivanhoe res we believe it to be the preferable reading the Act. United States to deliver water on imposed by conditions the S., State.” 357 U. at 291-292. repeated dictum was in City supra, Fresno,

Like of and in this opinion Court’s in Arizona California, v. U. S. 546 (1963), where Court the also said: argument

“The that 8 of Act § the Reclamation requires the United States in of delivery the water to priorities follow already laid down state been law has disposed of by this Court in Ivanhoe Dist. v. Irr. McCracken, . . and in City . reaffirmed Fresno Cali v. of .... Since of § the Reclamation Act did not fornia subject Secretary law in disposing state of water we [Ivanhoe], cannot, consistently Ivanhoe, with hold that Secretary must dispos be bound state law in of ing Id., water under Project Act.” at 586-587. While we are not convinced language that the above diametrically inconsistent position petitioners,26 with the or it squarely supports undoubtedly the United it States, goes further necessary than was presented decide the cases to the City Court. Ivanhoe and Fresno involved conflicts between requiring § to follow state law as to rights, water and other provisions of Reclamation Acts that placed specific limitations on how water was to be distrib- uted. Here may the United States it ignore contends explicit state law even if no congressional directive conflicts with imposed by the conditions the California State Water Control Board.27 opinion directly Part of Court’s appear in Ivanhoe indeed would

support petitioners’ position. Thus, the Court concluded that under 8§ of the “comply 1902 Reclamation Act the United States must state when, law operation the construction and project, reclamation necessary acquire becomes it to or interests therein.” vested S., (emphasis added). 357 U. at 291 27The State of California appellant supported was an in Ivanhoe and decision of Appeals City the Court of for the Ninth Circuit in Fresno. Court had asked the California, the States Arizona distribution would control that state law to rule multistate a massive Canyon Project, Boulder from the River.28 After review- project on the Colorado reclamation Act, Canyon Project history of Boulder ing legislative concluded that because seq., 43 U. 617 et the Court S. C. Con- scope Project, multistate unique size and Secretary’s with the gress did not intend interfere on what terms water to determine with whom and power rejecting would be made.29 While the Court contracts City from Ivanhoe repeated language claim States’ for it to scope there no 8,§ Fresno as to the need singular except reaffirm such as it related to language Project Act. history Canyon of the Boulder legislative the above- But because there is at least between tension reading quoted dictum and what we conceive to the correct we the dictum 1902, §of 8 Reclamation Act disavow imposing from prevent petitioners it would to extent that which permit conditions on the to the United States granted authorizing congressional provisions with are inconsistent require 8 cannot be read to project question. Section only law when it becomes comply with state That necessary rights. or condemn vested water purchase Special they power agreed with that had such Master the States Act, Project 617m, incorporated which under 14 of the U. S. C. § § 1902, Project Act, 617q, Act of and 18 of the 43 U. S. C. Reclamation § § provided nothing in the Act should be construed “as interfer which ing on December either to with such as the States had adopt policies the waters within their borders or to such and enact such necessary they respect appropriation, control, deem to the laws as disagreed, and use of within their borders.” The Court with three waters dissenting. Justices though concluding power limited, Even that the of the States was so Project “plainly Act Court went on allows note things Project to do not inconsistent with the Act or with federal control S., the river.” 373 at 588. U. section does, provide course, for the protection of vested water rights, but also requires the Secretary to comply with state law in the “control, appropriation, use, or distribution of water.” Nor, as the United States contends, does merely require the Secretary of the Interior file notice with the State of his intent to appropriate but to thereafter ignore the provisions substantive of state law. The legisla- tive history of the Reclamation Act of 1902 makes it abun- dantly clear that Congress intended to defer to the substance, as well as the form, of state water law. The Government’s interpretation would trivialize the broad language purpose of §8.

Indeed, until recently, it has been the consistent position of the Secretary of the Interior and the Bureau of Reclamation, who are together responsible for executing the provisions of the Reclamation Act of 1902, that in appropriating water for reclamation purposes the Bureau must comply with state law. The Bureau’s operating instructions, example, provide:

“State and Federal law and policy establish the frame- work project formulation. Project 'plans must comply with State legal provisions or priorities use for beneficial water .... In some cases, of .. . State laws . . . have been modified to specific meet conditions in authori- zation of particular projects.” U. S. Department of Interior, Bureau of Reclamation, Reclamation Instruc- tions § 116.3.1 (1959) (emphasis added).

"The Reclamation recognizes Act the interests rights and in the utilization of and control their water of resources and requires the Bureau, in carrying pro- out visions Act, to proceed in conformity of with State water laws. Since the construction of a reservoir and the subsequent storage and release of water for beneficial purposes normally entails stream regulation, it is neces- sary to reach an understanding with the States regarding (1957) 231.5.1 Id., limitations.” operating reservoir added). (emphasis advised the Bureau Valley Project, to the Central respect

With “ water recognizes State . . . law that Congress '[reclamation ” on filings “Bureau and thereunder’ law and A961 Cong. Rec. approval.” subject to State are (1949).30 of language unnecessarily broad until

Indeed, of the Ivanhoe, practice the uniform both opinion Court’s clearly of the Court opinions and of Bureau Reclamation any they may impose argument petitioners’ supported directive. congressional inconsistent condition party indispensable not an was the United States holding that Court (1935), U. Wyoming, S. Nebraska observed:

“[T]he Interior, pursuant to the ^[1902] ob- Wyoming engineer to state Act, applied waters, appropriate ... permission him from tained acts . All of the date. . priority . and was awarded so the reservoirs operating Bureau Reclamation subject river are waters and release impound authority Wyoming. [citing matter law we know as alleges, “The bill Secretary and Act], that Reclamation of the 1902 8§ Act Reclamation authority of the acting by his agents, permits and obtain must legislation, supplementary Wyoming from the State for the use of priorities construction history of administrative remarkably similar A Live Stock v. Gerlach weight in United States given advice accorded weight must be Co., Considerable S., at 735-736. 339 U. charged agency by Reclamation Act interpretations these Perkins v. Rusk, (1965); 1 Zemel v. 381 S.U. operation. See its with Gilbert, 429 Co. v. Electric General (1971); Matthews, U. S. S.U.

in the same manner as a private appropriator or an irriga- tion district formed under the Id., state law.” at 42-43. years Ten later, in its final decision in Nebraska v. Wyoming, 325 U. S. (1945), the Court elaborated on its original observation:

“All of steps these make plain that [the Reclamation] projects were designed, constructed and completed ac- cording to pattern of state provided law as in the Reclamation Act. We say can here what was said in Fox, Ickes U. S. 82 (1937)]: [300 ‘Although gov- ernment diverted, stored and distributed the water, the contention petitioner thereby that ownership of the water or water-rights became vested in the United States is not well founded. Appropriation was made the use of the government, but, under the Reclamation Act, for the use of the land owners; and by the terms of the law and of the contract already referred to, water- rights became the property of the land owners, wholly distinct from the property right of government in the irrigation works. . . . government was and remained simply a carrier and distributor of the water . . . , with the right to receive the stipulated sums in the contracts as reimbursement for the cost construction and annual charges for operation and maintenance of the works.’

“We have then a direction by Congress the Secretary of the Interior to proceed in conformity with state laws appropriating water for irrigation purposes. We have a compliance Id., . direction. . .” at 613-615. The United States suggests that, even if 1902 intended the Secretary of the Interior to comply with state law, more legislative recent enactments have subjected reclamation projects “to a variety of policies federal leave no room for state controls on operation of a project or on the choice of it will serve.” Brief for uses United States 89. Congresses While later have indeed issued new directives to the Secretary, they consistently have reaffirmed that directly should follow in all respects state law not inconsistent with these directives. The Flood Act of Control 1944, 58 example, Stat. which first authorized the New provides Melones Dam, “policy that it is the Congress recognize rights interests and in determin ing development of watersheds within borders and their likewise their rights in water utilization interests Perhaps control.” most eloquent expression of the need to observe state water is found in Report law the Senate on the McCarran which Amendment, (a), S. C. U. subjects the United jurisdiction States to state-court for gen adjudications: eral stream

“In the arid Western States, for more than 80 years, law has been the water above beneath the surface ground belongs to the public, and the to the use thereof is to acquired be from the which is which found, primary State is vested with the control thereof.

“Since it is clear control of the States have the water within their boundaries, it essential that each and every along given owner including course, United States, must be State, amenable to the law of the 31It is noting original worth that the Reclamation Act of 1902 devoid of such provided directives. That Act charges that the for water should “be returning determined with a view to the reclamation fund the estimated cost of construction of the project, apportioned and ... be equitably” and that appurtenant should “be to the land irri gated, and beneficial basis, measure, use . . . the and the limit right”; the Act also forbade sales tracts of more than 160 acres. Despite these Secretary, restraints on the however, it is clear from language legislative history of the 1902 Act that intended state law to control where it was not provisions. inconsistent with the above

if there is a proper administration of the water law as it has developed over years.” Rep. S. No. 755, 82d 1st Cong., Sess., 6

V Because the District Court and the Court of Appeals both held that California could not impose any conditions what- ever on the United States’ appropriation permit, those courts did not reach the United States’ alternative contention that the conditions actually imposed are inconsistent with con- gressional directives toas the New Melones Dam. Nor did they reach California’s contention that the United States is barred by principles of collateral estoppel from challenging the consistency of the permit conditions. arguendo, Assuming, that the United is still free to challenge the consistency of the conditions, resolution of their consistency may well require additional factfinding. We therefore the judg- reverse ment of the Court of Appeals and remand for further proceed- ings consistent with opinion.

Reversed and remanded. Mr. Justice with White, whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

Early in its opinion, the majority identifies the critical issues in this case as to the “meaning scope” and of 8 of § Reclamation Act of In quest 1902. of suitable answers, the majority launches on an extensive survey of 19th- and 20th- century statutory judicial precedents partially that deline- ate the relationship between federal and state respect with law to the conservation and use of the water resources of the Western States. At the end of this Odyssean journey, conclusion seems to be that under the relevant federal statutes containing the policy reclamation of the United States, intention of has been to recognize local and state law controlling both the “appropriation and distribution” reclama- of federal object are that resources of the water projects. tion reluctance, obvious however,

Straightaway, far really go so 8 does § footnote in a is conceded relinquish total to intend “did not all, after Congress, reclamation of the the actual distribution control state law following Ante, 21. Where 668 n. the States.” the Reclama- provisions with other inconsistent would be Secretary con- to the directives congressional or with Act tion way.1 give law must statutes, 8 and local other tained state 8,§of by virtue is insisted that Otherwise, however, it next section projects. federal govern policy must defending this conclusion is devoted majority opinion con- cases prior follow our why it refuses explaining temporal present the narrowly than much more struing 8§ acceptable. finds majority because concluded has also opinion

Meanwhile, the by rights acquire water may not United 8, of the with in accordance except or condemnation appropriation are rights water particular example, If, for state law. interests, by private law under state to condemnation subject issue, This States. by the United they may be taken neither water of United States by the acquisition the going 1 U. S. C. now 43 Act, §§ 32 Stat. the 8 of Reclamation Section 383, provided: affecting or intended construed Act shall be “[N]othing in this Territory any or of State way the any with laws in interfere or to affect water use, of used or distribution control, appropriation, relating the Secretary of' the acquired thereunder, and right any irrigation, or vested in proceed in Act, shall this provisions the of Interior, carrying out the any way affect any nothing shall laws, herein conformity such any landowner, or of Federal Government any the of right State or or the any stream to, interstate in, or from water or user of appropriator, acquired the use of Provided, That the thereof: waters irrigated, land to the appurtenant be Act of this shall provisions the under limit of basis, measure, and be use shall and beneficial right.”

681 by among questions presented is not domain, eminent respect are no case, expressed and the views in this prior our is sounder and no less inconsistent with cases than developed majority’s view that the distribution governed by federal law. projects reclamation is to state I Four of the on the construction major bearing five cases Valley 8 Reclamation § have arisen out the Central massively expensive undertaking which Project, reclamation redistributing aimed Central Val- the water in California’s ley, which the and which the unable to finance eventually Federal Government undertook.2 The salient fea- tures which need not be have been project, repeated, Live outlined in Court’s United States v. Gerlach cases. Co., Irrigation (1950); Stock 339 725 Ivanhoe District v. U. S. Rank, McCracken, Dugan 372 (1958); U. S. U. S. City (1963); California, Fresno v. U. S. project’s principal components One of the interrupted upper Friant which flow Dam, San Joaquin impounded being distributed to River, waters irrigate Joaquin lands water. not theretofore served San im- supply To the needs of the water was basin, lower river ported Valley from the to the north. The Sacramento River difficulty was that water was delivered to the Sacramento ri- Joaquin San some 60 miles below Friant Dam. The parian and others along owners this section river, very severely diminished, flow which would least be naturally remedy. sought their Irrigation As the United States said in its brief in Ivanhoe District

McCracken, (1958), Valley Project 357 U. S. 275 “the Central was largest single pursuant undertaking program. to the federal reclamation project by adopted was the United States at the instance California, at an estimated cost to more than the United States of $800,000,000.” Curiae, 1957, Brief for United as Amicus O. T. 122-125, p. Nos. 28. Gerlach, supra, the Court of Claims had compensa- made

tion awards to the owners of riparian certain grasslands that had been watered the seasonal along overflow this section of the river. This overflow would no longer take place. The United States insisted project was an undertaking under the power commerce to control navigation and that the Government need not compensate for the destruction of ripar- ian rights. The Court disagreed, concluding that Congress, in an exercise of its power constitutional to tax and spend for general welfare, had proceed elected to under the reclama- tion laws to pay for any rights vested taken the Gov- ernment: required “[W]hether to do so or not, elected to recognize any rights state-created and to take them U, under power its of eminent domain.” 339 (foot- atS., note omitted).

Since the closing of the Dam would terminate the annual inundation of the lands inquiry involved, the became whether there had been a taking any defined and rec- ognized by state law. an After extensive inquiry, the Court determined that the Court of Claims had properly understood state law, the compensation awards were affirmed.

The next case before this involving Court the Central Val- ley Project Ivanhoe, supra. That case arose of pro- out ceedings the state courts, required by federal statute, confirm contracts for the use of water entered into between irrigation state districts state water on agency, the one hand, and the United States on the other. The contracts' provisions contained against the use project on tracts in excess of 160 acres, a provision specified by § 5 of the Reclamation Act of 1902 and substantially re-enacted in the Adjustment Omnibus Act of 1926, Stat. as amended, 650, Stat. 43 U. S. They C. 423e.3 also contained the 3Section 5 of the Act, Reclamation provided 32 Stat. pertinent part: “No to the use of private water for land ownership shall sold for exceeding a tract sixty one hundred and any acres to one land-

40-year payout provisions provided for in 9 of the Reclama- tion Project Act of 1939, 53 Stat. 1193, as amended, 72 Stat. 542, 43 U. S. C. § 485h. The California Supreme Court refused to confirm the contracts because it construed 8 § of the Recla- mation Act of 1902 as requiring the contracts to conform to state law and because the 160-acre limitation payout and the provisions were, separate for reasons, contrary to the law of California. judgment This in part rested on theory the water rights acquired by the United by were, virtue subject 8,§ to the obligations normal trust users that were imposed by state law and that were inconsistent with the proposed contract provisions.4 by As described Attorney General California, who represented the state water districts in this Court, Supreme California Court reasoned that the water rights needed perform the contracts owner, and no such sale shall any be made to landowner unless he be an actual bona fide land, resident on such occupant or residing thereof in the neighborhood of land, said no such permanently shall attach payments until all therefor are made.” posed The issue by was revealed the brief for United States in Ivanhoe:

“The Supreme California Court also erred in upholding the claim just compensation. denial of Chief Justice correctly Gibson stated in dissenting his opinion below that ‘if there any state-recognized vested right which, fact, conflicts acreage with the limitation, right may be taken compensated by government the federal power its under (AJS eminent domain' 79; 73, p. 48). cf. The trust declared and applied by majority of the court cannot imposing have effect of state restriction on the power federal of eminent power domain. That inseparable ‘is sovereignty’ from permits ‘acquisition because it means or instruments governmental which alone per- functions be can ‘It formed.’ can neither be enlarged nor diminished a State. Nor can any prescribe the manner in which it must exercised. The con- sent aof State can never precedent be a condition enjoyment.’ to its Kohl v. States, United 367, 91 U. S. 371-372, 374. It makes no difference property whether the 'sought to be condemned is held ... in trust of in instead fee.’ United States Carmack, S.U. 239. The may press beneficiaries their compensation.” claims to Brief for United Curiae, States Amicus O. T. 122-125, p. Nos. 56. could be acquired by the United States; this was an untenable position, Attorney General because contended, “never before has property rights it been held a state could be endowed with attributes which prevent would United acquiring rights States from it needs to accom- plish a purpose.” federal Appellants Brief for in Ivanhoe Irrigation McCracken, District v. O. T. 1957, 122-125, Nos. p. 21.5 unanimously

This Court judgment reversed the Supreme authority California Court. It first ruled: “[T]he impose the conditions of the contracts here from the comes power of the Congress to condition the use of federal funds, works, projects compliance on require- reasonable And ments. if ... the enforcement of conditions im- those pairs any compensable property rights, just then for recourse compensation open in the courts.” 357 U. at 291. The S., rejected Court also argument 8 required § the Secre- tary to follow state law that was inconsistent with 5. As the § Court understood 8, merely § “it requires the United States comply with state law when, operation construction and of a reclamation project, necessary acquire it becomes for it to rights water or vested interests therein.” 357 U. 291. atS., (Emphasis added.) The United would be obliged pay any for rights which were vested under state law “ and which it took, ut the acquisition of [b] must not be confused with the operation of projects.” federal Ibid. (Emphasis added.) The Court could find nothing 8 that “compels the United States to deliver water on conditions imposed by the State,” 357 U. at 292 S., (emphasis added), and quoted with approval from Wyoming, Nebraska v. 325 U. S. 589, 615 (1945): suggest “‘We do not that where provided system has regulation for projects federal ” give must way before an system.’ inconsistent state Accord- 5 The Attorney California analysis General’s Supreme of the California opinion Court’s is to be found in his Brief Appellants 54r-60.

ingly, the Court held that 8 § did not require ignore § the provisions of which had been policy national for over 50 years. Gerlach,

Like Dugan and Fresno cases involved the consequences of the Friant Dam on dependent those on the first miles of the Joaquin San downstream from the proj- ect. These cases from arose judgment of the Court of Appeals for the Ninth Circuit entered in a brought by suit water-right claimants below the Friant Dam, including the city of for Fresno, injunction an prevent to the storing and diverting of water at the Dam until satisfactory remedy deprivation the of their rights had been achieved. State Rank, 293 F. 2d 340 (1961). The defendants were local officials'of the United States Reclamation a number Bureau, of irrigation and utility districts, and later the United States itself. The District Court overruled the that claim the suit was an unconsented suit against the United States and ordered that the injunction issue unless the Government effected a “physical solution” adequate satisfy plaintiffs’ water rights, which it held the United States was obligated respect. The Court Appeals dismissed the United States from the action and then inquired whether against the suit the officials and the districts was also a against suit the United States. depended This in the first instance on whether these officers were acting within their statutory and authority. constitutional they If not, were the could suit go forward. con- Plaintiffs tended, among other things, that Congress had not conferred any right to condemn rights along this stretch of the river and in any that plaintiffs event had rights under Califor- nia’s county-of-origin and watershed-of-origin statutes not subject were to condemnation under state law hence, pursuant were 8,§ by not seizable the United States.6 6 As the Appeals explained, Court one of the three reasons submitted by riparian owners for the authority lack of to condemn part on the of the United States was as follows:

“The third plaintiffs contention County that California’s The Court of Appeals rejected argument based 8§on and state law. Section 7 original Reclamation Act had authorized Secretary to acquire any necessary to rights carry provisions out by purchase Act and to so do or judicial condemnation under process. Moreover, expressly authorizing the Valley Project Central Rivers and Harbors Act, 50 Stat. 850, provided that “acquire could by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes . . . Court Appeals thus ample found authority for the condemnation or taking of plaintiffs’ rights and held if that, even California gave law these plaintiffs a preference over United and the other rights defendants as to to appropriate surplus waters, did it not follow that preferred could be taken the United States. “While a state can bestow property rights on its citizens which the United States must respect, cannot take from the United power States the acquire rights.” those 293 F. 2d, at 354. Although holding United States power had ample to seize the water rights at the issue, Court Appeals went on to hold, never- theless, no that taking the legal sense had the transpired; officials were mere trespassers, were acting outside their and could authority, enjoined. Absent condemnation of vested rights, § required project the respect to rights those in operating project.. the Hence, injunction an was warranted.

The case was to brought this Court public where the officers continued to claim they were acting legally and were not subject to suit. Plaintiffs argued, among other things, Origin and Origin Watershed of (which statutes . . . under 8 of the § Reclamation Act . . . the United respect), States is bound prevent diversion of Joaquin waters of beyond the San its watershed until the rights plaintiffs of these satisfied; have been that to condemn rights plaintiffs these purpose for the of such diversion disregard is to Cali- contrary fornia law 8.” F. 2d, at 354.

that their riparian rights could not be taken by condemnation for purposes of use outside county of origin or the water- shed origin. for Respondents Brief in Delano-Earlimart Irrig. Dist. Rank, O. T. pp. No. 30-41. This Dugan, Court in however, unanimously agreed with the Court of Appeals that the United States had ample statutory au- thority to take the asserted rights. question “The specifi- was cally settled in Ivanhoe Irrigation District .., v. McCracken . where we said rights that such could be acquired by pay- ment of compensation 'either through condemnation if or, ” already taken, through action of the owners in the courts.’ 372 U. S., at 619. Furthermore, Court noted: “The power to seize which was granted here had no limitation placed upon it by the Congress, nor did the Appeals Court of bottom its conclusion on a finding any limitation. [The United States plenary power had] to'seize the of respond- whole rights ents’ in carrying out the congressional mandate . . . .” Id., at 622-623.

Disagreeing, however, with the Appeals Court of taking issue, the Court ruled power to take had actually been exercised, properly so, and that the suit against the officers was therefore against a suit the United States and should be remedy dismissed. The of the plaintiffs, as it was in Gerlach, inwas the Court of Claims.

The Court granted also petition by certiorari filed city Fresno dealt separately with the city’s case. 372 U. S. Fresno, as a riparian, overlying landowner, had rights vested to underground waters from a source fed Joaquin San River. These were threatened anticipated diminishment Joaquin San below Friant Dam. Among other things, city claimed that the water necessary satisfy its rights being diverted to areas beyond the limits permitted by the county-of-origin and watershed-of-origin statutes of the State of California; under these statutes city’s rights preferred were and were not 688 Opinions under state law.7 § condemnation

subject to sup- Attorney were submitted in General California City for Fresno v. of this claim. Brief Petitioner port claims pp. 148-150.8 These California, 1962, 51, O. T. No. essentially riparian those of a owner to the maintenance were Joaquin claimed, flow of the River. Fresno also of the San county-of-origin under the watershed-of- however, that an origin prior right it had a Dam water in statutes, to Friant necessary satisfy project water to its and that amount needs beyond prescribed by could not limits be delivered these city's 8, statutes until needs were met.9 Section respect city’s rights to argued, required the United States statutory prior- under The city these statutes. also claimed a ity municipal uses, purchase project as well as the to price proposed water for less than the Bureau officials charge. United rejected

The Court of these claims. The each despite acquire had authority, law, and state riparian Fresno’s had To rights, extent, done so. Dugan. city’s recourse was in the Court of as in Claims, may operate pre- Section 8 “does not mean that state law 7 Question petition specifically posed 3 of Fresno’s for certiorari the issue percolating underground whether the United States “can take waters . . . agricultural condemnation or eminent domain for use in areas outside county origin.” 51, Cert., and watershed of Pet. for 0. T. No. p. 6. Attorney opinion part: submitted was relevant General’s “ legislative background priority ‘The makes it difficult to conceive Legislature authority destroy that the priority intended that the could b[y] priority only against condemnation. Since the exists the au- thority, destroy completely such construction would the effect of Section ” gesture.’ Petitioner, and make its an enactment idle Brief for 51, pp. 0. T. No. 148-149. claim, riparian The dual nature of Fresno’s first as a owner with vested percolating water, municipality and second claiming as a water preference shed project-developed water, under state law to is made clear 2d, in 293 351-352, F. 360-361.

689 vent the United States from exercising power of eminent domain acquire of others. This was set- tled in Ivanhoe Irrigation District v. McCracken . . 372 . S., U. at 630. Nor did 8 require § “compliance with Califor- nia statutes relating preferential rights of counties and watersheds of origin and to the priority of domestic over irrigation uses.” S., 372 U. at 629-630. The more limited role 8§of “is to leave to state law the definition of the property interests, if any, for which compensation must be made.” 372 S.,U. at 630. The Court say went on to in that any event the California county watershed and did statutes give Fresno the priority claimed and that claims with respect to a municipal priority and to a lower water price were contrary to § 9 of the Reclamation Project Act of 1939.10 was

Fresno decided on April 15, 1963, having argued been on January 7 of year. The opinion judgment in Arizona California, 373 v. S. 546, U. were on 3, announced June 1963, the case having argued been for the second time November 1962. In Arizona, Special Master had con- cluded that in choosing between users within each State and in settling the terms of his contracts with them, required to follow by state law virtue §§ 14 and 18 of the Project by Act and reason of 8 § of the Reclamation Act. The Court expressly disagreed, relying on Ivanhoe and Fresno saying with respect 8:§to

“The argument 8 of the Act Reclamation re- quires the United States in delivery of water to follow priorities laid down state law has already been dis- 10The usual rule in this Court is that independent when two reasons given are support judgment, obiter, ruling “the on neither is but each judgment is the equal validity court and of with the other.” Union City R. Co. v. Dodge Mason Co., & Fort R. Pacific 160, 199 U. S. 166 (1905); United Co., Title Ins. v. 472, (1924). 265 U. S. 486 See Realty also Co., Interstate v. Woods Mas (1949); U. S. sachusetts States, United 333 U. S. posed McCracken, Irr. Court Ivanhoe Dist. v. 357 U. City S. 275 (1958), reaffirmed Fresno v. California, U. S. 627 we held Ivanhoe that, even 8 of though preserved § the Reclamation Act general state law, provision that could not override a specific provision of single the same a prohibiting Act landowner from getting water for more than 160 acres. We said:

“ merely 'As we read requires § the United States to comply with state law in the construction and when, operation of a necessary reclamation project, it becomes acquire it to rights' water or vested interests therein. But the acquisition of rights must not be confused operation with the projects. federal As the said Court in Nebraska Wyoming, S.,]U. at 615: “We do not [325 suggest that where Congress provided system has a regulation for projects give way federal it must before an inconsistent system.” state nothing . read in § . We . compels that the United to deliver water on con- imposed by ditions S.„] State.’ U. at 291-292. [357 “Since 8 of § the Reclamation subject did not Act Secretary to state in disposing law of water in that case, we consistently Ivanhoe, cannot, with hold that Sec- retary must be bound state in disposing law of water under Project Act.” U. atS., 586-587.

The again Court thus held that require § did not Secretary to follow state law distributing project water because 8 dealt acquisition, distribution, § with of reclama- tion water.

II majority reads Ivanhoe as holding § that and similar explicit statutory directives exceptions are § 8’s otherwise controlling mandate that law govern state must both the acquisition and mis- distribution of reclamation water. This

interprets opinion. that It is plain enough that in response to the argument that § 8 subjected the § 5 contract provisions to the strictures of state law, squarely Court rejected submission on the ground 8 § only dealt acquisi- tion of and required the United respect States to the water rights that were vested under law. state That might haye Court saved the provision § 5 on a different and ground narrower acceptable more present major- Court ity not render ground does actually employed any less of holding of the Court or transform it into the discardable dic- tum the majority considers it to be.

It is also beyond doubt that both Fresno and con- Arizona sidered Ivanhoe to contain a holding 8 was limited to water-right acquisition and did not reach the distribution of reclamation water. But whatever the proper characteriza- tion of the pronouncement Court’s in Ivanhoe might be, Fresno itself held in that distributing project water the United States, despite state law and § 8, only not by not bound the municipal-preference laws of California, which were con- trary to a specific federal statute, but also could export water from the watershed regard without county- and water- shed-of-origin statutes. The Court held the latter even though no provision of federal law forbade the federal offi- cers from complying with preferences assertedly estab- by lished those state laws.

Much the same is of Arizona, true where the Court heard two arguments totaling over 22 hours and considered volumi- nous briefs that dealt with a variety of subjects, including the important issue of the impact §of 8 on the Secretary’s free- dom to contract for the distribution of In its water. opinion, the Court only not dealt with both Ivanhoe and Fresno as considered holdings that 8 did § on bear distribution rights, but also expressly disagreed Special with its Master squarely rejected claims that the Secretary could not contract for the sale of except in compliance priorities with the suggested by majority, by Nor, as state law. established Court suggest case to that the anything in the Arizona is there to the statutes by peculiar factors conclusion arrived at its terms of Secre- particular authorizing project. any fed- or directed were not authorized tary’s contracts proceed free to holding he was The Court’s that eral statute. § that proposition premised on squarely he did was water. project of the not control the distribution did until Court, this no case in of the matter is that The short that insists majority present 8 as the § has construed one, contrary. All of cases are to the relevant it be construed. recent relatively now Our that discards are cases the Court statutory construction issue of dealing decisions with an by Con- audit is under constant subject with a matter that project authori- majority reclamation gress. suggests, As the normally accompanied by declarations zations are applicable. Here, laws shall provisions the reclamation part of the is a Melones which was and Dam, the New 1944, in 58 Stat. Valley was first authorized Project, Central legislation latter 1191. The again 76 Stat. 901, 1962, Army Corps Dam by provided for construction by the Engineers operation but for and maintenance reclamation laws ... .” “pursuant to the Federal Interior been con- had included which time § Those laws were no amend- out above. There strued Ivanhoe as set §§ is now codified 43 U. S. C. ments to which in project was reauthorized 1962. 383, when in amending the reclamation laws Furthermore, except as otherwise indicated Congress provided laws, Federal reclamation provisions “the amendments, full force continued in amendatory thereto, are and Acts V). More Supp. (1970 ed., 421d § effect.” U. S. C. nothing in the amendments 421g § stated specifically, procedural and sub- repeal construed to or limit the “shall be of this title.” of sections 372 and 383 requirements stantive There is no hint of disagreement with the construction placed on these sections in Ivanhoe, Dugan, Fresno, and Arizona.

Only the revisionary zeal of present majority explain can its misreading of our cases and its evident willingness dis regard them. Congress has not disturbed these cases, until it I does, would respect them. In contrast to Monell v. New York City Dept. Social Services, 436 U. S. 658 (1978), there is problem no here of reconciling inconsistent lines of cases or of an correcting error with respect to an issue not briefed or argued and raised the Court sua sponte. All of the relevant cases are contrary today’s holding, none of them was the Court on a frolic of its own. The courts below quite were right in holding that the State was without power under the reclamation laws impose conditions on the operation of the New Melones Dam on the distribution of project water developed by that Dam, which would be undertaken with federal funds.

Ill Even less explicable is the majority’s insistence on reaching out to overturn the holding of this Court in Fresno, which reflected the decision in Dugan and was in grounded turn on a similar approach in Ivanhoe, that state law may not restrict the power of the United States to condemn water rights. The issue was squarely presented and decided in Dugan both and Fresno. In both cases it was claimed —and Attorney General’s opinions supported the claim —that some of the rights at issue were not condemnable under state law and that § 8 therefore forbade their taking by the Federal Government. In both cases, the claim rejected by this Court, just as it was in the Court Appeals. Without briefing and argument, the majority now discards holdings these in a footnote. See ante, at n. 671-672, 24. Section 7 of the Reclamation Act, now 43 U. S. C. 421,

authorizes the Secretary to acquire any rights or property 694 the and process, judicial under or condemnation

by purchase request the suit at to institute is directed Attorney General the for explained Jackson Mr. Justice Also, as Secretary. the the Central 8, when 735 n. Gerlach, S., U. 339 Court Secretary of the the in 1937, authorized Project was Valley in emi proceedings ‘by acquire to was “authorized Interior rights-of-way, lands, all or otherwise, domain, nent .. .’. purposes necessary for said property and other rights, Reclamation 10 of the § Furthermore, 850.” 844, 50 Stat. per Secretary to authorizes 373, § 43 C. now U. S. Act, As the Act. out the carry necessary to all acts any and form Co., 234 U. S. 228, Pitts v. in United States said Court Buffalo by authorized was “the Government (1914), under which 1093, 388, Stat. ch. 1902, of June 17, act neces property any acquire being made to improvement And it.” appropriate if need to and purpose for the sary Court, States, (1915), 237 U. S. United in Henkel said: referring §§ to act, purposes carrying

“In out or any rights prop- acquire to Interior authorized of the same, acquire the and to purpose, necessary for erty specifi- He is or condemnation. by purchase either necessary any acts perform all cally authorized pro- into effect carrying purpose of proper con- been hardly have could Authority of the act. visions be- we do terms, and comprehensive in more ferred because Congress, intention it was the lieve circum- under of lands selection right of Indians’ from the opera- such lands to reserve shown, here stances the reclamation might do so defeat To of the act. tion evidently purpose which it was projects promote.” authorize Congress, cases that in our suggestion been a there has Never disentitle permit a State to intended adopting 8,§ appropriate or necessary property acquire Government to carry out an otherwise constitutionally permissible statutorily authorized am, undertaking. Oerlach, Ivanhoe, Dug and Fresno are to the contrary.

The Court’s “disavowal” of prior our cases and of the Gov- ernment’s power to condemn state water rights, all without briefing and argument, gratuitous a effort I do not join care to and from which I dissent.

IV Although I do join Court reconstruing the con- trolling statutes as it does, Court’s work today is prec- edent for “setting things right” in the area of statutory water law so as to satisfy the views of a current Court majority. And surely the dicta with which the opinion Court’s is laced today deserve no more or no less respect than what has chosen to label as dicta past Court decisions. Of course, the matter is purely statutory and Congress could easily put an end to our feuding if it chose to make it clear that local authorities are to control the spending of federal funds for reclamation projects and to control priorities for the use of water developed by federal projects.

Case Details

Case Name: California v. United States

Court Name: Supreme Court of the United States

Date Published: Jul 3, 1978

Citation: 438 U.S. 645

Docket Number: 77-285

Court Abbreviation: SCOTUS