Ecology Law Quarterly
Volume 11 | Issue 2
Article 1
September 1983
National Reclamation in Imperial Valley: Law v.
Policy
Paul S. Taylor
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Recommended Citation
Paul S. Taylor, National Reclamation in Imperial Valley: Law v. Policy, 11 Ecology L.Q. (1983).
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National Reclamation in Imperial
Valley: Law v. Policy
Paul S. Taylor
Now, what machinery have you? You have the machinery of the National Reclamation Act, intended, as your Governor has remarked, to
meet the demands of the homeseekers of the country. Guarded in
every way against monopoly and speculation, intended to secure to
every man of industry an area of land sufficient, according to the soil
and the climate or productiveness, for the support of a family, and sufficient for that alone, (applause), it is also intended to break up existing
land monopoly.
Senator Francis G. Newlands of Nevada'
Passage of the Reclamation Act 2 by Congress in 1902 marked the
culmination of a decade of citizens' gatherings known as the National
Irrigation Congresses. These Congresses had advocated extension of
the earlier Homestead Acts 3 into seventeen arid and semi-arid western
states, accompanied by substantial public financing of the cost of uniting water and land. 4 In formulating the reclamation program, proponents were particularly concerned with preventing land speculation
and the acquisition of water monolopies that had plagued previous
land allocation programs. 5 When President Roosevelt gave executive
support to the proposal in 1901, he cautioned that "the Government
should make clear, beyond shadow of doubt, its intention to pursue this
'6
[reclamation] policy on lines of the broadest public interest."
The following year, Congress drafted the Reclamation Act with
the goals of the Irrigation Congresses clearly in mind. During the legislative debates, Congressmen were assured that the legislation guarded
Copyright © 1983 by
ECOLOGY LAW QUARTERLY.
I. Address by Senator Francis G. Newlands, Red Bluff Banquet (June 1905), reprinted
in SACRAMENTO VALLEY DEVELOPMENT Assoc., IRRIGATION SERIES No. 1, BULLETIN No.
23, at 14 (1905).
2. Reclamation Act, ch. 1093, 32 Stat. 388 (codified as amended at 43 U.S.C. §§ 371616yyyy (1976 & Supp. V 1981)).
3. Act of May 20, 1862, ch. 75, 12 Stat. 392 and Act of March 3, 1891, ch. 561, 26 Stat.
1097, repealed by Pub. L. 94-579, tit. VII, § 702, 90 Stat. 2743, 2787 (1976).
4. Taylor, Reclamation: The Rise and Fall of an American Idea, AMERICAN WEST,
July 1970, at 27.
5.
Id.
6. First Annual Address to the Congress by President Theodore Roosevelt (Dec. 3,
1901), reprinted in 14 COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS
6641, 6658 (1923).
ECOLOGY LAW QUARTERLY
[Vol. 11: 125
against the possibility of speculative land practices and compelled division of large acreages into small holdings. 7 As a result, the Reclamation Act contained numerous devices for assuring that the Act's
beneficiaries would be family farmers. The Act required both that recipients of federal water live on or near their farm,8 and, more importantly, that an individual could not obtain water for lands exceeding
160 acres. 9
In the early years following passage of the Reclamation Act, the
acreage limitation appeared to be accepted as a condition for obtaining
government water. The first chief of the Reclamation Service found
that, although he was told that landowners would not agree to divide
their land, they yielded when the matter was placed before them.' 0
Confirming this view, a California engineer reported in 1905 that
"[a]lready owners of more than seventy huge tracts of land have signified . . . their willingness to subdivide their lands for the benefit of
intending settlers." I I
These forecasts turned out to be optimistic, especially in Imperial
Valley.
Imperial Valley, a below sea level basin of desert sands, lies adjacent to Mexico on the southern California border of the United
States.' 2 In 1901, the year preceding passage of the Reclamation Act,
private developers cut the silted bank of the Colorado River, releasing
13
its waters to flow by gravity through a canal onto the desert sands.
The developers encouraged prospective farmers to purchase public
lands from the government and then buy river water from the company
to irrigate their farms. 14 The project was built without government
assistance and the president of the development company adamantly
opposed any government interference with "the private property and
the private profits of any private corporations."' 5
In 1905 disaster struck. Floodwaters of the Colorado River de7.
8.
9.
(Supp.
10.
35 CONG. REC. 6677 (1902) (statement of Rep. Mondell).
43 U.S.C. §431 (1976).
Id. The acreage limitation was raised to 960 acres in 1983. 43 U.S.C.A. § 390dd
1983).
OFFICIAL PROCEEDINGS OF THE THIRTEENTH NATIONAL
IRRIGATION CONGRESS
29 (A. Francis ed. 1905) (statement of F. Newell).
i1. Ferris, Reclamation of Swamp Lands, FOR CALIFORNIA, Sept. 1905, at 13-14.
12. United States v. Imperial Irrigation Dist., 322 F. Supp. 11, 12-13 (S.D. Cal. 1971).
See STATE OF CALIFORNIA, THE CALIFORNIA WATER ATLAS 39 (1978).
13. 322 F. Supp. at 12-13.
14. Irrigation of Arid Lands by Means of the Colorado River, Hearings on HR. 13627
Before the House Committee on Irrigation of Arid Lands, 58th Cong., 2d Sess. 9-13 (1904)
(documents accompanying statement of A. H. Heber, President, California Development
Company).
15. Id. at 63 (statement of A. H. Heber, President, California Development Company).
19831
NATIONAL RECLAMATION
stroyed the canal's intake gates and, as a result, the entire flow of the
river poured through the Company's canal and into the desert basin,
forming the Salton Sea, a lake on the northern edge of the Valley, and
threatening to inundate the entire Valley. 16 In 1907, Southern Pacific,
whose railroad track was endangered by the changed course of the
river, succeeded in closing the gap and returning the Colorado to its
previous channel.' 7 With help from the federal government, the immediate danger of inundation was avoided.' 8 However, the hazard remained that flooding of the Valley might recur.
As years passed, the Valley's leaders changed their conception of
how best to meet their irrigation needs. In 1911 they formed the Imperial Irrigation District, a public agency created under the laws of California. 19 The District's organizers sought relief from periodic floods,
unpredictable summer flows, and daily friction created by the passage
of their canal through Mexico. 20 They turned to Congress, not as an
intruder on "private property and private profit," but as a source of
public aid and an instrument for private development. Public assistance came to be greatly valued, provided it came free of public control.
Interest in water development was not confined to Imperial Valley.
A broad program to develop water and hydroelectric power resources
for all of Southern California and the rest of the Lower Colorado Basin
was evolving. 2 1 The Bureau of Reclamation had undertaken studies in
1920 concerning the possibility of a major facility on the Colorado
River, 22 but conflicts among the competing western interests defeated
Congressional authorization in three successive Congresses. 23 In 1928,
responding to the sustained urging of Imperial Valley and other Southern California interests seeking development, Congress passed the
Boulder Canyon Project Act. 24 The Act authorized construction of the
Hoover Dam across the Colorado River 25 and delivery of water stored
behind the dam to several areas of the Southwest, including Imperial
16. 322 F. Supp. at 13.
17. Id.
18. Congress authorized the President in 1910 to spend up to one million dollars for the
purposes of protecting lands in Imperial Valley and elsewhere along the lower Colorado
River. S.J. Res. 120, 36 Stat. 883 (1910).
19. United States v. imperial Irrigation Dist., 559 F.2d 509, 515 n.l (9th Cir. 1977). See
CAL. WATER CODE §§ 20500-29978 (Deering 1977).
20. Arizona v. California, 373 U.S. 546, 552-53 (1963).
21.
E.
COOPER, AQUEDUCT EMPIRE: A GUIDE TO WATER IN CALIFORNIA, ITS TURBUB. MOELLER, PHIL SWING AND
BOULDER DAM (1971).
LENT HISTORY, ITS MANAGEMENT TODAY 304-07 (1968);
22. 373 U.S. at 554.
23. 559 F.2d at 532.
24. Boulder Canyon Project Act, ch. 42, 45 Stat. 1057 (1928) (codified as amended at 43
U.S.C. §§ 617-17u (1976)).
25. Id. § 617.
ECOLOGY LAW QUARTERLY
[Vol. 11 :125
Valley, for irrigation. 26
The Act's extended and confused legislative history opened the
door to questions concerning the applicability of the Reclamation Act's
160 acre limitation to Imperial Valley recipients of project water. During deliberations in 1928, Congress considered two differing authorizations for the Boulder Canyon Project. The House passed H.R. 5773,
which provided:
[AIll contracts for the delivery of water for irrigations purposes . . .
shall provide all irrigable land held in private ownership by any one
owner in excess of one hundred and sixty acres shall be appraised in a
manner to be prescribed by the Secretary. . . and that no such excess
lands shall receive water from said canal if the owner thereof shall refuse to execute valid recordable contracts for the sale of such lands
27
The version of the Act passed by the Senate included several references
to reclamation law, but lacked a specific reference to the 160 acre provision. 28 California Senator Hiram Johnson, however, told the Senate
that the House and Senate bills had "like purposes" and "like
designs." 29
In conference, the House accepted the Senate bill. Congressman
Phil Swing, who represented Imperial Valley and sponsored the House
bill, urged his colleagues to pass the Senate bill, saying "the only differences" between them "are matters relatively of small importance com30
pared with the beginning of this great project."
Although reference to acreage limitation was omitted, the Act includes specific references to reclamation law, of which acreage limitation is an essential part. Section 1 of the Act provides that expenditures
for the All-American Canal, the facility which delivers water to the
Imperial Valley, are reimbursable "as provided in the reclamation
law."' 31 Section 4(b) prescribes payment "in the manner provided in
the reclamation law."' 32 Section 14 provides that the Act "shall be
deemed a supplement to the reclamation law, which said reclamation
law shall govern the construction, operation, and management of the
works herein authorized, except as otherwise therein provided. '3 3 This
"exception" became the open door through which enforcement of acreage limitation in the Imperial Valley was avoided.
Initially, the impression of Valley residents was that the Boulder
26.
27.
28.
29.
30.
31.
32.
33.
Id. §617h.
H.R. 5773, 70th Cong., 1st Sess. (1928).
559 F.2d at 534.
70 CONG. REC. 67 (1928) (statement of Sen. Johnson).
id. at 833 (1928) (statement of Rep. Swing).
43 U.S.C. § 617 (1976).
43 U.S.C. § 617c(b) (1976).
43 U.S.C. § 617m (1976).
19831
NATIONAL RECLAMATION
Canyon Project would apply the 160 acre limitation on farm size to all
landowners entitled to receive project irrigation water. Attorney
Northcutt Ely, Assistant to Secretary of the Interior Ray Lyman Wilbur, wrote in a 1930 memorandum:
The Reclamation Law's limitation of 160 acres to a particular owner
presents a serious problem, in view of the fact that this, being an existing project, includes many farms with larger area. I see nothing to do
but enforce it unless the Imperial Irrigation District can get new legislation. In any event, enforcement of this requirement would undoubtedly have a salutory effect on suspected speculative activities in that
34
locality.
Three years later, however, during the closing days of the Hoover
Presidency, Secretary Wilbur signed a letter taking a contrary position:
Upon careful consideration the view was reached that this limitation
does not apply to lands now cultivated and having a present water
right. These lands, having already a water right, are entitled to have
such vested right recognized without regard to the acreage limitation
35
mentioned.
Since the farmers of Imperial Valley had appropriated water prior to
the Boulder Canyon Project, water was delivered to them without a 160
acre limitation on use.
Given this interpretation of the Act, there was to be no change in
the stratified social and economic situation prevalent in the Valley. Imperial Valley was not a community of farmers with families working
their own land in the tradition of the Homestead and Reclamation
Acts. On the contrary, it was a divided, polarized society. One-third of
the Valley population was of Mexican origin and worked as field wage
laborers. 36 An intensive investigation of the Imperial Valley by the
present author in 1928, on the eve of the passage of the Boulder Canyon Project Act, found:
Mexicans came principally as . . . gangs of hand laborers and remained a class apart. . . . [Tihe coincidence of class, racial, and cultural differences which combin[ed] to maintain a social ostracism . . .
delay[ed] the rapprochement of the two cultures. . . and retard[ed] the
37
blurring of the class line.
A subsequent study conducted by the Bureau of Agricultural Economics in 1942, when delivery of water via the All-American Canal
began, found:
34. Response No. 8 by Northcutt Ely to Item No. 8 posed by Richard J. Cooley for
consideration in connection with the Imperial All-American Canal contract (Nov. 4, 1930),
reprintedin 71 Interior Dec. 496, app. D at 528 (1964).
35. Letter from Ray Lyman Wilbur to Imperial Irrigation District (Feb. 24, 1933), reprintedin 71 Interior Dec. 496, app. E at 529, 530 (1964).
36. I P. TAYLOR, MEXICAN LABOR IN THE UNITED STATES 18 (1930).
37. Id. at 33, 94.
ECOLOGY LAW QUARTERL Y
[Vol. 11:125
About 40 percent of the total number of farm landowners do not live in
the valley but collectively control almost one-half (48 percent) of the
total acreage in farms .... [T]he prevalence of large-scale farming
operations appears to introduce various problems which are due, in
part, to instability of the working personnel, their lack of interest in
community and social welfare, poor housing conditions, and other
problems commonly associated with the hiring and housing of agricultural labor; concentration of the farm wealth and control among relatively few operators and, in some instances, the flow of farm wealth in
the form of profits to non-resident operators; consolidation of the farm
land into large farming units which reduces the number of farms operated by farm families in the community, stimulates the development of
a labor class, and discourages owner operated farms ....38
The introduction of Bureau supplied water served only to accentuate the social and economic disparities in the Valley. The 1960 census
reported that 800 landowners, each of whom owned more than 160
acres, held 233,000 acres or approximately one-half the total acreage of
the Valley. 39 The 1964 Census of Agriculture reported the average size
of an irrigated farm in Imperial County was 676 acres. 40 By 1978, the
Census reported the average had decreased slightly to 630 acres, but
41
remained over four times the California average of 143 acres.
Between the 1933 Wilbur letter and 1964, no Secretary of the Interior moved to enforce acreage limitation in Imperial Valley. This inaction occurred despite occasional criticism from an Interior Department
Solicitor. Solicitor Fowler Harper recorded his disagreement with the
Wilbur position in 1945 and applied acreage limitation to the Coachella Valley, a neighboring area also served with water through the AllAmerican Canal. 42 But in 1958, Solicitor Elmer Bennett, without making a formal inquiry into the divergent views of Secretary Wilbur and
Solicitor Harper, rejected acreage limitation enforcement in the Valley,
noting that, "to my mind the time has long since passed when [re-eval'43
uation] is realistic and practicable.
In 1964, however, the Interior Department changed its position.
Solicitor Frank Barry, after thorough investigation issued a formal
38.
BUREAU OF AGRICULTURAL ECONOMICS, U.S. DEPT. OF AGRICULTURE, LAND
1-2 (1942).
39. 322 F. Supp. at 12.
40. 1 U.S. DEPT. OF COMMERCE, 1964 CENSUS OF AGRICULTURE, pt. 48 (California)
372-73 (1967).
41.
1 U.S. DEPT. OF COMMERCE, 1978 CENSUS OF AGRICULTURE, pt. 5 (California) 1,
250 (1981).
42. 559 F.2d at 538.
43. Letter from Elmer F. Bennett, Solicitor, U.S. Dept. of Interior, to J. Lee Rankin,
Solicitor General, U.S. Dept. of Justice (Feb. 5, 1958), reprintedin 71 Interior Dec. 496, app.
J at 550 (1964).
OWNERSHIP AND OPERATING TENURE IN IMPERIAL VALLEY, CALIFORNIA
19831
NATIONAL RECL,4MA TION
opinion, to which Secretary Stewart Udall gave approval, holding that
acreage limitation applied to Imperial Valley. 44 Following the opinion,
of the acrethe Interior Department attempted to negotiate acceptance
45
failed.
efforts
these
but
age limitation in the Valley,
In order to impose the acreage limitation on lands in the Imperial
Irrigation District, the United States went to court in 1971. District
Judge Howard Turrentine held that, in light of Congress' failure to explicitly include the limitation and its implicit approval of the Department of the Interior's earlier interpretation of the Boulder Canyon
46
Project Act, acreage limitation did not apply to Imperial Valley.
In 1972, another district judge contradicted Judge Turrentine's
opinion. In Yellen v. Hickel,47 mostly landless farm workers who desired to purchase farm land in the Valley brought suit to enforce the
acreage limitation and residency requirements of the Reclamation
Act.4 8 Visiting Judge William Murray, from Montana, held that ReclaDismation law did apply to contracts between the Imperial Irrigation
49
trict and the federal government, and held for the plaintiffs.
The Ninth Circuit consolidated the two cases and, in 1977, agreed
with Judge Murray that the acreage limitation and residency require5
ments did apply.50 The Supreme Court granted certiorari. '
[I]f the policy of the government upon vital questions, affecting the
whole people, is to be irrevocably fixed by decisions of the Supreme
Court, the instant they are made, in ordinary litigation between parties,
in personal actions, the people will have ceased to be their own rulers,
having to that extent practically resigned their government into the
52
hands of that eminent tribunal.
President Abraham Lincoln
The United States Supreme Court terminated the short-lived an53
timonopoly reclamation policy in Imperial Valley on June 16, 1980.
The Court found that, although the Boulder Canyon Project was "supplemental to the reclamation laws, which as a general rule limited
44. Applicability of the Excess Land Laws Imperial Irrigation District Lands, 71 Interior Dec. 496 (1964).
45. The Imperial Irrigation District Board of Directors steadfastly maintained that restrictions did not apply to the Valley and found "no reason for compromise." IMPERIAL
IRRIGATION DISTRICT, INFORMATION ON IMPERIAL VALLEY ACREAGE
LIMITATION PROB-
3 (n.d.).
46. 322 F. Supp. 16-27.
47. Yellen v. Hickel, 352 F. Supp. 1300 (S.D. Cal. 1972).
48. Id. at 1312.
49. Id. at 1318-19.
50. United States v. Imperial Irrigation Dist., 559 F.2d 509, 526-42 (9th Cir. 1977).
51. Bryant v. Yellen, 444 U.S. 978 (1979).
52. First Inaugural Address of President Abraham Lincoln (Mar. 4, 1861), reprintedin
ABRAHAM LINCOLN: HIS SPEECHES AND WRITINGS 585-86 (R. Basler ed. 1946).
53. Bryant v. Yellen, 447 U.S. 352 (1980).
LEM
ECOLOGY LAW QUARTERLY
[Vol. 11:125
water deliveries from reclamation projects to 160 acres under single
ownership," the Act required the Secretary of the Interior to observe
rights to Colorado River water that had been perfected under state law
at the time the Act became effective.5 4 The Court also noted that Interior Department administrators "did not impose acreage limitations on
lands that already had vested or present water rights . . .[and] officially adhered to that position until 1964 when it repudiated its prior
construction of the Project Act."' 55 The Court concluded that all water
users who perfected water rights before the construction of the Boulder
56
Canyon Project were thus free from Reclamation Law limitations.
The District Court was given the responsibility for identifying some
14,000 Valley acres irrigated only since passage of the Boulder Canyon
Project Act and which, consequently, lacked the perfected rights that
57
would have freed them from acreage limitations.
Following the decision, the New York Times reported "farmers in
California's Imperial Valley are entitled to federally subsidized irrigation water regardless of the size of their farms."518 The paper noted that
among the farmers are Tenneco, Inc., the Southern Pacific Railroad,
and the Standard Oil Company of California.5 9 Various corporate
owners are said to have spent hundreds of thousands of dollars unsuccessfully lobbying Congress for an exemption from the acreage limitation. 60 The Court provided the remedy Congress declined to give. 6 1
The significance of the contrasting views of the Ninth Circuit and
the Supreme Court on the relevance of acreage limitation to Imperial
Valley is highlighted by a 1969 study of social stratification in rural
areas across the United States. 6 2 The study found that, nationwide,
farm personnel of "lower class" comprised less than one-third of the
total. 63 In Imperial Valley the proportion of farm personnel of "lower
class" was 87.3 per cent, almost nine out of ten. 64 This percentage was
54. Id. at 370-71.
55. Id.
56. 1d. at 377-78.
57. Id. at 378-80.
58. N. Y. Times, June 17, 1980, at Al, col. 5.
59. 1d at D17, col. 1.
60. Id
61. Following the Court's opinion, Congress, at the request of California Senators
Cranston and Hayakawa, granted the Imperial Irrigation District a complete exemption
from acreage limitation and residency requirements, thereby freeing the additional 14,000
acres from the reclamation law. Pub. L. 96-570, § 4, 94 Stat. 3339, 3340 (1980) (codified at
43 U.S.C. §423e note (Supp. V 1981)). See 126 CONG. REC. S 16,375 (daily ed. Dec. 12,
1980) (statement of Sen. Cranston).
62. Smith 4 Study ofSocial Strati'/cationin the AgriculturalSections of the US.: Nalure, Data, Procedures,and PreliminaryResults, 34 RURAL Soc. 496 (1969).
63. Id at 506. Members of the "lower class" were defined as those with income less
than $2000 in 1959. Id. at 503.
64. Id at 508.
19831
NATIONAL RECLAMATION
exceeded only in Dade County, Florida.65 The machinery of the National Reclamation Act is thus providing irrigation water to very few
men of industry in Imperial Valley.
The Reclamation Act of 1902 was designed for the benefit of small
farmers. The Supreme Court, during the administration of Chief Justice Earl Warren, affirmed this purpose when it upheld the application
of the 160 acre limitation to lands in California's Central Valley supplied with reclamation water, even though those lands, like the lands in
Imperial Valley, possessed prior water rights. 66 The Court, in an unanimous opinion, found the reclamation law's provisions entirely reasonable; landowners who desire to receive government subsidized water
must be willing to comply with government regulations allocating its
supply. 67 The Court noted that the intention of the Reclamation Act
'6
was "to benefit people, not land.
In rejecting the application of acreage limitation to Imperial Valley 22 years later, the Court, during the administration of Chief Justice
Warren Earl Burger, unanimously elected to ignore the rights of people
in order not to interfere with rights derived from land.
65.
66.
67.
68.
Id.
Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275 (1958).
Id. at 296.
Id at 297.