United States v. Tulare Lake Canal Co.

677 F.2d 713

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 1982
• Docket: Nos. 72-2322, 78-1378 and 78-1422
• Status: Published

Opinions

BROWNING, Chief Judge:

The basic question presented by this lengthy litigation is whether acreage limitations imposed by the federal reclamation laws apply to private lands receiving irrigation benefits from the Pine Flat Project. More specifically, the question is whether owners of more than 160 acres of land within the project area must execute recordable contracts to sell their land in excess of 160 acres at a price excluding incremental value resulting from the existence of the project in order to receive water that would not have been available if the project did not exist. The relevant legal and factual questions are explored in detail in United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1094-96 (9th Cir. 1976) (Tulare I) (No. 72-2322).

The United States brought this action in 1963, seeking an injunction enforcing the acreage limitation. The defendants raised both statutory and constitutional defenses. The district court found for defendants on the statutory grounds and did not reach the constitutional questions. 340 F.Supp. 1185, 1188 (E.D.Cal.1972). In Tulare I, we reversed the district court judgment and rejected defendants’ statutory defenses. On remand, the district court granted the government’s motion for summary judgment on the constitutional issues. Defendants appeal from that ruling in Nos. 78-1378 and 78-1422.

Defendant Tulare Lake Canal Company has also filed a “Petition for the Court to Recall its Mandate” in Tulare I based on the Supreme Court’s subsequent decisions in California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978), and Bryant v. Yellen, 447 U.S. 352, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980).

I. The Statutory Issues:

Petition to Recall the Mandate in No. 72-2322

Tulare argues that it is appropriate to recall the mandate in Tulare I because the decision is “demonstrably wrong,” American Iron & Steel Institute v. Environmental Protection Agency, 560 F.2d 589, 594 (3d Cir. 1977), in light of the decisions in California and Bryant. A change in controlling authority or a conviction that the court erred are ordinarily not alone sufficient grounds for recall of a mandate after final judgment. 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure: Jurisdiction § 3938 at 284-85. However, since final judgment has not been entered in this case, we consider the effect of California and Bryant on Tulare I under the more flexible “law of the case” doctrine. Kimball v. Callahan, 590 F.2d 768, 771-72 (9th Cir. 1979). We conclude that neither California nor Bryant affects the soundness of Tulare I.

A. California v. United States

As noted at the outset, the question presented in Tulare I was whether the acreage limitation of federal reclamation law applies to the Pine Flat Project. As the issue was presented in Tulare I, the answer turned upon the meaning of the statutes authorizing the project and imposing the acreage limitation. The Pine Flat Project was authorized by the Flood Control Act of 1944, 58 Stat. 887, 901. Section 8 of the 1944 Act provides that dams such as Pine Flat shall be operated “under the provisions of the federal reclamation laws.” 58 Stat. 887, 891; 43 U.S.C. § 390. Among the provisions of the federal reclamation laws is Section 46 of the Omnibus Adjustment Act of 1926, 44 Stat. 636, 649-50, 43 U.S.C. § 423e, derived from Section 5 of the Reclamation Act of 1902, 32 Stat. 389, 43 U.S.C. § 431. Section 46 of the 1926 Act provides that lands in excess of 160 acres held by one owner shall not receive water made available by the construction of a project unless the owner executes a contract agreeing to sell the excess land at prices reflecting the value of the excess land without the benefits made available by the project. We held in Tulare I that Congress intended by Section 8 of the Flood Control Act of 1944 to make Section 46 of the Omnibus Adjustment Act of 1926 applicable to the Pine Flat Project.

The question presented in California was whether the state may impose conditions upon the appropriation and distribution of water in connection with the New Melones Dam, a federal reclamation project in the Central Valley of California. The answer turned on the meaning of Section 8 of the Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C. § 383, which states that the 1902 Act was not intended to interfere with the laws of any state relating to the appropriation or distribution of water, and that the Secretary of Interior is to proceed in conformity with such laws. The Supreme Court held that, in view of Section 8 of the 1902 Act, the state may impose any condition on the appropriation and distribution of water in a federal reclamation project not inconsistent with Congressional directives respecting the project.

Although Section 8 of the 1902 Act is applicable generally to federal reclamation projects, including the Pine Flat Project, and the holding in California is therefore applicable to Pine Flat, the issue resolved in California obviously was not the same as the issue resolved in Tulare I. Tulare Lake Canal Company argues that California nonetheless affects Tulare I for two reasons.

The first is that Tulare I relied upon Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), and California expressly rejected a dictum from the Ivanhoe opinion. The language in Ivanhoe that was disapproved in California suggests that a state may not impose conditions upon the distribution of water through a federal reclamation project even though the conditions “are not inconsistent with congressional provisions authorizing the project in question.” 438 U.S. at 674, 98 S.Ct. at 3000. This language in Ivanhoe was disapproved in California because California held that a state could impose upon the distribution of water through a federal reclamation project any condition that was not inconsistent with Congressional directives for the project.

Tulare I did not rely upon the dictum disapproved in Ivanhoe. Tulare I relied instead upon the holding in Ivanhoe, a holding expressly reaffirmed in California. Section 5 of the Reclamation Act of 1902 contains an acreage limitation provision-— the forerunner of the acreage limitation in Section 46 of the Omnibus Adjustment Act of 1926, involved in Tulare I. The holding in Ivanhoe was that despite the general command of Section 8 of the Reclamation Act of 1902 that the Secretary of Interior comply with state law, the acreage limitation in Section 5 of the 1902 Act pre-empted the law of California prohibiting such an acreage limitation. 357 U.S. at 291-93, 78 S.Ct. at 1183-85. In California the Supreme Court expressly reaffirmed this holding. 438 U.S. at 668 n.21, 98 S.Ct. at 2997, 438 U.S. at 672 & n.25, 98 S.Ct. at 2999. We relied upon this holding, or upon other aspects of Ivanhoe unrelated to the disapproved dictum, each time we cited Ivanhoe in Tulare I. See 535 F.2d at 1099, 1112, 1113 n.74, 1119, 1120, 1121 n.103, and 1137 n.176.

Second, Tulare Lake Canal Company argues that even if the holding of California is not inconsistent with Tulare I, the rationale is. The Company argues that the general tenor of California requires greater deference to state law in the management of federal reclamation prospects, and since California law prohibits acreage limitations in the distribution of irrigation benefits, the decision in Tulare I that the acreage limitation in Section 46 of the 1926 Act applies to the Pine Flat Project despite contrary state law is somehow inconsistent with California. But, as noted, Ivanhoe expressly held that the acreage limitations in section 5 of the 1902 Act pre-empt contrary California law, and California expressly reaffirmed this holding. The company does not state, and we are unable to discover, any reason why the acreage limitation in Section 46 of the 1926 Act should have a different effect.

Tulare Lake Canal Company reads California as requiring that state law be followed unless it conflicts with “a ‘clear,’ ‘specific,’ or ‘explicit’ Congressional directive,” and argues that the length of the discussion of legislative history in Tulare I “alone demonstrates that Congressional intent to that effect certainly was not ‘clear,’ ‘specific,’ or ‘explicit.’ ” There can be no doubt that the Congressional directive to impose the acreage limitation is sufficiently clear, specific, and explicit to pre-empt state law. That is the holding of Ivanhoe that was reaffirmed in California. Our lengthy discussion in Tulare I was directed to another question: whether Congress in the Flood Control Act of 1944 intended to apply this clear, specific, and explicit federal directive to the Pine Flat Project. California has no relevance to this question at all. And even on this question we found the answer clear. After a thorough examination we concluded that “[t]he legislative history leaves no doubt that the 160 acre limitation was intended to apply in the Kings River service area.” 535 F.2d at 1098.

In sum, although California does require that the United States follow state water law absent a pre-empting federal statute, the same case shows that section 46 of the 1926 Act is precisely such a statute. California strengthened rather than weakened the conclusion we reached in Tulare I.

B. Bryant v. Yellen

The question presented in Bryant was whether the Imperial Valley Irrigation District, which received Colorado River water from the project authorized by the Boulder Canyon Project Act, 45 Stat. 1057,43 U.S.C. §§ 617-617t, was subject to the acreage limitation in Section 46 of the Omnibus Adjustment Act of 1926. Since Section 14 of the Boulder Canyon Project Act provided that the reclamation laws would apply “except as otherwise herein provided,” the Court concluded that Section 46 of the 1926 Act applied to the Imperial Valley district unless its applicability was foreclosed by some other provision of the Boulder Canyon Act. 447 U.S. at 368-69,100 S.Ct. at 2241-42. The Court found such a bar in the provision of Section 6 of the Boulder Canyon Act that Boulder Canyon Project works were to be used for the “satisfaction of present perfected rights.” The court concluded, in light of the section’s express language, legislative history, and contemporary construction by government officials, that rights to water from the Colorado that had been acquired in accordance with state laws and exercised by actual diversion and application of a specific quantity of water to a defined area of land before the effective date of the Act were not subject to the 160-acre limitation. 447 U.S. at 368-78,100 S.Ct. at 2241-46.

The provision of Section 6 of the Boulder Canyon Project Act which the Supreme Court read as exempting “present perfected rights” from acreage limitation is central to the decision in Bryant. There is no equivalent exception in the Flood Control Act of 1944, applicable to the Pine Flat Project.

Tulare relies on the following language of Section 8 of the 1944 Act:

Dams and reservoirs operated under the direction of the Secretary of War may be utilized hereafter for irrigation purposes only in conformity with the provisions of this Section, but the foregoing requirement shall not prejudice lawful uses now existing.

(emphasis supplied). As we held in Turner v. Kings River Conservation District, 360 F.2d 184, 193-194 (9th Cir. 1966), however, the italicized language refers to uses to which projects operated by the Secretary of War were being put at the effective date of the 1944 Act. It refers neither to private water rights nor to projects, like Pine Flat, that were not in existence when the 1944 Act was passed.

Furthermore, unlike the situation in Bryant, neither legislative history nor contemporaneous administrative interpretation of the statute authorizing the Pine Flat Project (the Flood Control Act of 1944) supports an exemption of the project from the 160-acre limitation. To the contrary, as the opinion in Tulare I demonstrates at length, both the legislative history and administrative construction of the Flood Control Act of 1944 clearly reflect a Congressional intent that the acreage limitations apply to the Pine Flat Project.

Equally wide of the mark is Tulare Lake Canal Company’s reliance upon the following provision of Section 8 of the 1902 Act:

Nothing in this act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State .. . relating, to .. . water in irrigation, or any vested right thereunder ... and nothing herein shall in any way affect any right of ... any landowner, appropriator, or user of water in, to or from an interstate stream ....

As we have pointed out, the Supreme Court in California explicitly reaffirmed its holding in Ivanhoe that the acreage limitation in Section 5 of the 1902 Act preempted contrary state law despite the provisions in Section 8. As we have also noted, the Company has suggested no reason why Section 8 of the 1902 Act should have a different effect upon the acreage limitation in Section 46 of the 1944 Act, involved in Tulare I, than it has upon the acreage limitation in Section 5 of the 1902 Act.

Thus the acreage limitation imposed by Section 5 of the 1902 Act and subsequent statutes applies despite Section 8 of that Act unless there is another applicable statutory provision reflecting a congressional intention that it should not apply to the particular project. As we have explained, there is no such provision applicable to the Pine Flat Dam. Even if there were, it would not change the result in Tulare I. Under our decision water rights that existed when the Pine Flat Project was initiated are not affected by the 160-acre limitation. Owners of excess lands may continue to receive all the water to which they were entitled prior to the construction of the project without executing contracts for the sale of the excess lands. See 535 F.2d at 1095 & n.3, 1143-44.

II. The Constitutional Issues:

Appeals in Nos. 78-1378 and 78-1422

The Supreme Court reviewed and rejected a wide range of constitutional challenges to the imposition of acreage limitations in federal reclamation projects in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 294-300, 78 S.Ct. 1174, 1185-88, 2 L.Ed.2d 1313 (1958). The constitutional arguments raised by appellants fare no better.

Appellants argue that because the acreage limitation imposed by federal reclamation law do not apply east of the 100° meridian, farmers west of that meridian are denied equal protection of the laws. Differing conditions in different geographic areas may provide a reasonable basis for different legislative treatment. “[Tjerritorial uniformity is not a constitutional prerequisite.” McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393 (1961). See also Toyota v. Hawaii, 226 U.S. 184, 191, 33 S.Ct. 47, 48, 57 L.Ed. 180 (1912). As the Court noted in California v. United States, supra:

the final expansion of our Nation in the 19th century into the arid lands beyond the hundredth meridian of longitude, which had been shown on early maps as the ‘Great American Desert,’ brought the participants in that expansion face to face with the necessity for irrigation in any way that no previous territorial expansion had.

438 U.S. at 648, 98 S.Ct. at 2987. The Reclamation Act of 1902 and the statutes that followed provided the means for funding the massive projects needed to complete the reclamation of the vast arid areas of the west. Id. The reclamation statutes are a rational legislative response to climatic differences between the western region and the remainder of the nation. Provision for acreage limitation are a reasonable means of furthering the public purposes underlying these statutes. Ivanhoe, 357 U.S. at , 78 S.Ct. at 1186; Tulare I, 535 F.2d at 1119-20.

Appellants argue that “it is unconstitutional for the United States to seek the breakup of large landholdings.” Section 46 of the 1926 Act establishes restrictions on the use of water available only because of the construction of the facilities financed by the government. Congress had the power to authorize such projects and to impose reasonable conditions, such as the acreage limitation, “relevant to the federal interest in the project and to the over-all objectives thereof.” Ivanhoe, 357 U.S. at 295, 78 S.Ct. at 1185.

Appellants assert that Ivanhoe involved government-owned water and a substantial government subsidy, and that the Pine Flat Project involved neither. As pointed out earlier, the acreage limitation applies only to the receipt of water that became available because of the federally financed project. An owner who declines to sell land in excess of 160 acres will continue to receive, for use on all of his lands, all of the water to which he was entitled before the project was built. Tulare I, 535 F.2d at 1095 & n.3, 1143-44. Contrary to appellants’ position, the Pine Flat Project did involve a federal subsidy to provide this and other benefits justifying the imposition of reasonable conditions upon receipt of the benefits. Tulare I, 535 F.2d at 1113, 1120-21 & nn.101-06, 1144.

Appellants argue that water users had a vested right to be relieved of acreage limitations by paying an allocable share of project construction costs, and that they were deprived of that right without due process of law. But, as we held in Tulare I, 535 F.2d at 1118-43, no such right exists.

Finally, appellants argue the district court erroneously refused to allow discovery that would have shown a denial of equal protection in exempting other projects from the acreage limitation but not Pine Flat. Appellants had ample opportunity for discovery during the eight years this case was pending in the trial court prior to the first appeal.

The petition to recall the mandate in 72-2322 is DENIED. The judgment of the district court appealed in 78 — 1378 and 78-1422 is AFFIRMED.