NOTES

Governmental function not exercised in construction of works.-In the construction of works for the irrigation of arid public lands, the United States is not exercising a governmental function, nor even a strictly public function, but is promoting its proprietary interests. (Twin Falls Canal Co. v. Foote, 192 Fed. 583.)

Construction of drainage works by United States and use thereof.-The United States may construct drainage works as a part of its irrigation system for a reclamation project. (Yuma County Water Users' Ass'n. v. Schlecht (1921), (C. C. A. Ariz.), 275 Fed. 885; affirmed (1923), 43 Sup. Ct. 498, 262 U. S. 138, 67 L. Ed. 909.)

The United States can save and continue to use the drainage, seepage, and waste waters from its reclamation project, even after such waters had been allowed to escape, so long as they could be identified and had not been abandoned. (Idem.)

Even if waste water from a Government reclamation project had once been abandoned, the Government could thereafter reclaim such water and apply it to beneficial use, if no right of third parties had intervened. (Idem.)

Conclusiveness of decision of Secretary of the Interior.-Necessity for drainage in connection with a reclamation project and the method of conducting the work are in the sound discretion of the Secretary of the Interior, and his discretion can not be reviewed by the courts. (Idem.)

"Including artesian wells."-This phrase is used to describe one class of irrigation works to be constructed in carrying out the scheme for reclaiming arid lands provided for in the act, and it is not contemplated by this section that such wells may be sunk as a part of the preliminary examinations authorized therein. (Secretary's instructions, March 3, 1903, 32 L. D. 278.)

In the prosecution of the work provided for in the act it is not permissible to sink an artesian well where it is believed that if water is found it will not be suitable or needed or used for irrigation purposes. (Idem.)

Examination of reclamation lands.-The Reclamation Service (Bureau of Reclamation) can not, while construction of a project is in progress, and prior to the laying out of its canals, undertake to reexamine, at the instance of individual claimants, particular tracts falling within the project, to ascertain whether or not such tracts are capable of service from its projected canals. (Lewis Wilson, 42 L. D. 8. See also 48 L. D. 153, amending paragraph 13 of general reclamation circular of May 18, 1916.)

Water appropriation.-When the Secretary of the Interior in the exercise of a reasonable discretion determines as to the validity of title to and as to the value of a right to appropriate water for irrigation purposes to be acquired by him under the provisions of the act of June 17, 1902, his decision is conclusive upon the accounting officers. (14 Comp. Dec. 724.)

See notes under sections 4 and 7 of this act.

Sec. 3. [Withdrawal of lands for irrigation works-Withdrawal of lands susceptible of irrigation Homestead entries-Determination whether project is practicable-Restoration and entry-Commutation.]— That the Secretary of the Interior shall, before giving the public notice provided for in section four of this act, withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act, and shall restore to public entry any of the lands so withdrawn when, in his judgment, such lands are not required for the purposes of this act; and the Secretary of the Interior is hereby authorized, at or immediately prior to the time of beginning the surveys for any contemplated irrigation works, to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from said works: Provided, That all lands entered and entries made under the homestead laws within areas so withdrawn during such withdrawal shall be subject to all the provisions, limitations, charges, terms, and conditions of this act; that said surveys shall be prosecuted diligently to completion, and upon the completion thereof,

and of the necessary maps, plans, and estimates of cost, the Secretary of the Interior shall determine whether or not said project is practicable and advisable, and if determined to be impracticable or unadvisable he shall thereupon restore said lands to entry; that public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws in tracts of not less than forty nor more than one hundred and sixty acres, and shall be subject to the limitations, charges, terms, and conditions herein provided: Provided, That the commutation provisions of the homestead laws shall not apply to entries made under this act. (32 Stat. 388.)

NOTES

I. WITHDRAWALS

(A) IN GENERAL

1. Nature of authority.-The authority to withdraw lands for irrigation purposes conferred upon the Secretary of the Interior is a special authority to make withdrawals for a particular purpose and is limited to the specific uses provided for in the act, or to uses incident to and in furtherance thereof. (Op. Asst. Atty. Gen., 33 L. D. 415.)

2. Classes of withdrawals.-There are two classes of withdrawals authorized by the act, one commonly known as "withdrawals under the first form," which embraces lands that may possibly be needed in the construction and maintenance of irrigation works, and the other, commonly known as "withdrawals under the second form," which embraces lands not supposed to be needed in the actual construction and maintenance of irrigation works, but which may possibly be irrigated from such works. (General Land Office circular of June 6, 1905, 33 L. D. 607.)

Two classes of withdrawals are provided by the act, and the exception of homestead entry from the second has no application to the first, withdrawals and reservations under the first class being from the necessity of the case absolute. (United States v. Hanson, 167 Fed. 881; 93 C. C. A. 371.)

As to discontinuance of temporary withdrawals, see Charles G. Carlisle (35 L. D. 649), overruling Mercer v. Buford Townsite (35 L. D. 119).

3. Lands subject to withdrawal.-By a successful contest against a desert-land entry the contestant does not acquire such a preference right of entry as will, prior to its exercise, except the land from the operation of a withdrawal made under said act. (Emma H. Pike, 32 L. D. 395.)

The Secretary of the Interior has the same right to withdraw lands within the Yosemite National Park, created by the act of October 1, 1890 (26 Stat. 650), for the uses and purposes contemplated by the act of June 17, 1902 (32 Stat. 388), that he has to withdraw lands for such purposes with'n forest reservation created under authority of the act of March 3, 1891 (26 Stat. 1095). (Op. Asst. Atty. Gen., 33 L. D. 389.)

Where the affidavit as to the character and condition of the land, accompanying an application to make selection under the act of June 4, 1897 (30 Stat. 36), is executed before the selector acting as notary public, such affidavit is void, and the application can therefore have no effect to except the lands covered thereby from a subsequent withdrawal embracing the same in accordance with the provisions of section 3 of the act of June 17, 1902. (Peter M. Collins, 33 L. D. 350.)

No such rights are acquired by settlement upon lands embraced in the entry of another as will attach upon cancellation of such entry, where at that time the lands are withdrawn for use in connection with an irrigation project; nor is there any authority for purchase by the Government of the settler's claim or of the improvements placed upon the land by him. (George Anderson, 34 L. D. 478.)

The fact that the act of April 18, 1896 (29 Stat. 95), provides that the lands in the abandoned portion of the Fort Assiniboine Military Reservation, thereby opened to entry, shall be disposed of only under the laws there'n specifically

named, does not prevent a withdrawal under the act of June 17, 1902 (32 Stat. 388), of any of said lands as to which no vested right has attached. (Mary C. Sands, 34 L. D. 653.)

Lands formerly within the Fort Buford Military Reservation were by the act of May 19, 1900 (31 Stat. 180), restored to the public domain and made subject to existing laws relating to disposal of the public lands, except such laws as are not specifically named there n, and are subject to withdrawal under the reclamation act as other portions of the public domain subject to entry under the general land laws; and a withdrawal of such lands for reclamation purposes is effective as to all of the lands for which entry was not made within three months from the filing of the township plat and prior to the withdrawal. (Op. Asst. Atty. Gen., 34 L. D. 347.)

By the mere filing of an application to enter under the homestead law, upon which action is suspended, and tender of the necessary fees, the applicant acquires no vested right to or interest in the land applied for, nor does such application have the effect to segregate the land from the public domain, so as to prevent a withdrawal thereof for reclamation purposes. (John J. Maney, 35 L. D. 250; Charles G. Carlisle, 35 L. D. 649. Dec'sion modified; see 48 L. D. 153; C. L. 1013, June 15, 1921.)

4. Lands not subject to withdrawal.-A mineral location founded on actual discovery of a valuable deposit of mineral within the limits of the claim, and maintained in accordance with the mining laws and local regulations, excepts the land from the operation of a withdrawal under this act. (Secretary's instructions of January 13, 1904; 32 L. D. 387.)

Congress having by the act of July 5, 1884 (33 Stat. 103), provided for the disposal of lands in abandoned military reservations, the Secretary of the Interior is without authority to dispose of such lands in any other manner or to segregate them for use in connection with an irrigation project. (Secretary's instructions of July 20, 1904; 33 L. D. 130.)

5. Effect of withdrawal.-A withdrawal of lands by competent authority for a lawful purpose operates to sever such lands from the public domain. (Kansas Pac. Ry. Co. v. Atchison, T. & S. F. R. Co., 13 Fed. 106.) But is ineffectual as against a title previously acquired. (Northern Pac. Ry. Co. v. Mitchell, 208 Fed. 469; Knudson v. Omanson, 10 Utah 124; 37 Pac. 250.)

A withdrawal of lands under this act will defeat a prior application to purchase the same under the timber and stone laws where, at the date of withdrawal, the applicant had acquired no vested right to the lands embraced in his application. (Board of Control, Canal No. 3, State of Colorado v. Torrence, 32 L. D. 472.)

Upon the cancellation of a homestead entry covering lands embraced within a subsequent withdrawal made under the act, the withdrawal becomes effective as to such lands without further order. (Cornelius J. MacNamara, 33 L. D. 520.)

Where, under the act of March 3, 1905 (33 Stat. 1069), lands of the Uintah Indian Reservation have been set apart and reserved as a reservoir site for general agricultural development and subsequently have been withdrawn, under section 3 of the reclamation act, from all forms of sale and entry, the United States is liable upon an implied contract to the Indians of said reservation for the occupancy and use of said lands to the extent that the use made of them is inconsistent with the rights of the Indians to use and occupy them or leave them open to sale and entry for their benefit, and the reclamation fund is applicable to the payment thereof. (14 Comp. Dec. 49.)

The proviso of act of June 25, 1910, section 5, as amended by section 10, act of August 13, 1914 (36 Stat. 686), making lands reserved for irrigation purposes and relinquished from prior entries subject to entry under the reclamation act, applies only to lands withdrawn under the reclamation act, as susceptible of irrigation under a proposed project, and not to lands withdrawn under the latter act, as required for the construction of irrigation works. (U. S. v. Fall (1921) (App. D. C.), 276 Fed. 622.)

A homestead entry, which was void when made, because the land was withdrawn as required for reclamation construction, is not validated by a subsequent order of the Secretary of the Interior declaring the land not needed for construction purposes. (Idem.)

6. Waters not reserved by withdrawal.-There is no authority to make such executive withdrawal of public lands in a State as will reserve the waters of

a stream flowing over the same from appropriation under the laws of the State, or will in any manner interfere with its laws relating to the control, appropriation, use, or distribution of water. (Op. Asst. Atty. Gen., 32 L. D. 254.)

7. Rights of way over withdrawn lands.-The use of rights of way over public lands within reservations for the purposes contemplated by either the act of February 15, 1901 (31 Stat. 790), or the act of June 17, 1902 (32 Stat. 388), will not be permitted if such use is incompatible with the public interest; and if at any time the public interest is jeopardized by the use of such rights of way after they have been granted, they may be revoked. (Op. Asst. Atty. Gen., 33 L. D. 389.)

8. Failure to note withdrawal on tract book.-Any withdrawal otherwise valid shall not be effected by failure to note same on tract book or otherwise follow the usual procedure. (Secretary's instructions of August 12, 1913; 42 L. D. 318.) See 48 L. D. 153, amending paragraphs 13, 14, and 16 and revoking paragraph 15 of general reclamation circular of May 18, 1916.

9. Contests affecting withdrawn lands.-See Secretary's instructions of August 24, 1912 (41 L. D. 171), overruling Fairchild v. Eby (37 L. D. 362), revoking General Land Office regulations of January 19, 1909 (37 L. D. 365), and restoring paragraphs 6 (modified) and 7 of General Land Office instructions of June 6, 1905 (33 L. D. 607). See secretary's instructions of September 4, 1912 (41 L. D. 241), amending said instructions of August 24, 1912. See also New Castle Co. v. Zanganella (38 L. D. 314).

See note 46 under this section.

10. Miscellaneous references.-General Land Office circular of September 9, 1902, giving notice of the reclamation act of June 17, 1902, to registers and receivers. (31 L. D. 420.)

General Land Office circular of October 25, 1902, to registers and receivers, in reference to withdrawals for surveys. (31 L. D. 423.)

Secretary's instructions of February 11, 1903, regarding withdrawals. L. D. 6.)

(32

Geological Survey circular of March 31, 1904, regarding withdrawals and other matters. (32 L. D. 537.)

General Land Office circular of June 15, 1904, in reference to notice to entrymen. (33 L. D. 38.)

General Land Office circular of June 6, 1905, to registers and receivers in reference to withdrawals. (33 L. D. 607.)

Secretary's instructions of October 12, 1905, regarding withdrawals. (34 L. D. 158.)

Secretary's order of October 3, 1912, directing notice to persons unlawfully settled upon withdrawn lands. (41 L. D. 293.)

D. 385), super(42 L. D. 349.)

General reclamation circular, approved May 18, 1916 (45 L. seding general reclamation circular, approved February 6, 1913. General reclamation circular approved May 18, 1916, was amended by instructions printed at 47 L. D. 417; 48 L. D. 113; 48 L. D. 153.

For digest of decisions and opinions in connection with oil and gas permits for withdrawn lands issued under act of February 25, 1920 (41 Stat. 437), see 47 L. D. 463.

(B) FIRST-FORM WITHDRAWALS

11. Effect of withdrawal.-Withdrawals made by the Secretary of the Interior under the first form, of lands which are required for irrigation works have the force of legislative withdrawals and are effective to withdraw from other disposition all lands within the designated limits to which a right has not vested. (Secretary's instructions of January 13, 1904; 32 L. D. 387.)

Under this act withdrawal is absolute, and no rights can be initiated by a settler during the existence of the withdrawal order. (Donley v. Van Horn (1920), (Cal. App.), 193 Pac. 514; Donley v. West (1920), (Cal. App.), 193 Pac. 519.)

12. Discretion of the Secretary.--The discretion of the Secretary of the Interior in making first-form withdrawals of lands can not be questioned, and no application to enter can be allowed on the ground that the land is not needed. (Ernest Woodcock, 38 L. D. 349.)

The withdrawal of land for irrigation purposes under this section is a matter that was committed to the Land Department exclusively, and, in the absence of fraud on the part of the officials of that department, can not be reviewed by the courts. (Donley v. West (1920), (Cal. App.), 189 Pac. 1052. See also Donley v. Van Horn (1920), 193 Pac. 514, 519.)

13. Rights of settlers and entrymen.-The reclamation act contains no provision for the recognition or protection of any right of a settler on unsurveyed public lands which may be withdrawn and reserved thereunder for use in the construction of irrigation works, nor is there any such provision in the act of June 27, 1906 (34 Stat. 519), or other statute of the United States, and such settler has no right which he can oppose to the taking of the land for such purpose. (United States v. Hanson, 167 Fed. 881; 93 C. C. A. 371.)

An application to make homestead entry for land embraced within a firstform withdrawal should not be allowed nor received and suspended to await the possible restoration of the lands to entry, but should be rejected. (Ernest Woodcock, 38 L. D. 349.)

See instructions of General Land Office, January 25, 1921, 47 L. D. 624, directing attention to sections 4, 13, and 20 of general reclamation circular May 18, 1916, 45 L. D. 385.

Where homestead or desert-land entries are included within first-form reclamation withdrawals, they should not be suspended, but allowed to proceed to final proof, certificate, and patent, and the land, if thereafter needed by the United States for reclamation purposes, reacquired by purchase or condemnation. (Secretary's instructions of August 26, 1914, 43 L. D. 374, overruling Op. Asst. Atty. Gen., 34 L. D. 421, and Agnes C. Pieper, 35 L. D. 459.)

14. Forest reserve lands.-Under the act of February 15, 1901 (31 Stat. 790), lands in forest reserves created under authority of the act of March 3, 1891 (26 Stat. 1095), may be appropriated and used for irrigation works constructed under authority of the act of June 17, 1902 (32 Stat. 388), as well as for works constructed by individuals. (Op. Asst. Atty. Gen., 33 L. D. 389.)

Reclamation withdrawals within the national forests are dominant, but until needed by the Reclamation Service (Bureau of Reclamation) the lands will remain for administrative and protection purposes under control and direction of the Forest Service. (Departmental decision, February 27, 1909.)

While the Secretary of the Interior may determine what lands within national forests withdrawn for reclamation purposes are necessary for the proper protection of reservoirs constructed under the reclamation act, he has no power to lease such lands, since authority in that regard is specifically granted to the Secretary of Agriculture. But in recognition of the needs of the Reclamation Service (Bureau of Reclamation) and to forestall any contracts detrimental to a reclamation project, all leases should be subject to the prior approval of the Secretary of the Interior. (31 Op. Atty. Gen. 56.)

But see act of July 19, 1919 (41 Stat. 163, 202), conferring jurisdiction on the Secretary of the Interior.

15. Mineral lands.-The right of the Government to appropriate public land for use in the construction and operation of irrigation works under the act of June 17, 1902 (32 Stat. 388), is not affected by the fact that the land is mineral in character. (Secretary's instructions of October 6, 1906; 35 L. D. 216; Loney v. Scott, 57 Or. 378; 112 Pac. 172.)

A mining claim as to which the claimant was in default in the performance of annual assessment work at the date of a withdrawal for the construction of irrigation works under the reclamation act does not except the land from the force and effect of the withdrawal. (Mrs. E. C. Kinney, 44 L. D. 580.)

16. Railroad rights of way. No such right is acquired by virtue of an application for right of way for a railroad under the act of March 3, 1875 (18 Stat. 482), before the approval thereof, and prior to the construction of the road, as will prevent the Secretary of the Interior withdrawing the lands covered thereby for use as a reservoir under the act of June 17, 1902 (32 Stat. 388). (Op. Asst. Atty. Gen. 32 L. D. 597.)

17. Reservoirs for domestic purposes.-The Secretary of the Interior has no authority under this act to withdraw lands for reservoir sites with a view to the use of the waters impounded therein for domestic purposes. (Op. Asst. Atty. Gen. 33 L. D. 415.)

18. Reservoir lands.-Under this act the Secretary of the Interior had authority to withdraw from public entry lands constituting a reservoir site sought to be appropriated by a water and power company. (Verde Water & Power Co. v. Salt River Valley Water Users' Ass'n (1921), (Ariz.) 197 Pac. 227.)